Kentucky attorney and member of the Kentucky Horse Racing Ned Bonnie lays out his argument for joining the Water Hay and Oats Alliance, an organization that supports federal oversight of medication use in horse racing and the elimination of all race-day medication.
I am one of the many persons who
support the Interstate Horse Racing Integrity and Safety (Pitts-Udall HR 2012)
Act of 2013. I am joining for a number
of reasons that I will summarize in the paragraphs below.
SECTION I: 30
YEARS AGO.
About 30 years ago, I
represented the National Horsemen's Benevolent and Protective Association
(HBPA) and was deeply involved in negotiations with respect to the introduction
of the Corrupt Horse Racing Practices Act of 1980. During this period, I wrote a Law Journal article for
the University of Kentucky detailing the problems of horse racing in the 1970s.[1] I traced the reasons for the
introduction of said bills and related the discussions, lobbying, and
resistance of the horse racing industry to said legislation.
At that time, the
racing industry reacted negatively to the thought of federal intervention in
medication issues within the pari-mutuel industry. This is an interesting position in light of the racing
industry's enthusiasm for and acceptance of the Interstate Horse Racing Act of
1978 that made interstate
gambling on horse races legal and subject to federal regulations. However, the
industry unanimously opposed the Corrupt Horse Racing Practices Act of 1980
when the Senate and U.S. Congress wanted to interfere with state and industry
control of medication issues.
The bill itself was tougher than the Pitts-Udall Bill of 2013 in that it proposed
draconian fines and suspensions, disqualified horses and provided for criminal
and civil penalties including prison terms for trainers, race track operators
and even owners.
Responsibility for
enforcement of the Corrupt Horse Racing Practices Act of 1980 was given to the
administrator of the Drug Enforcement Administration (DEA) of the Department of
Justice.
Within months, a
wide variety of horse interest groups developed their own positions on the
medication issues, all in an effort to develop a consensus that would
forestall the Congressional hearings and effectively answer the questions
presented. DOES THIS SOUND
FAMILIAR?
The racing
industry was successful in preventing the passage of either the House or Senate
bill. The industry was successful
in persuading the government that it did not want, or need, federal legislation
in the area of racing medication; that the medication issues could not be
resolved on a uniform national basis; that the horse owners and tracks within
the states had such a dramatically different economic position that the ability
to persuade all states to adopt the same rules was an exercise in futility;
that the increased costs of such a bill would mean a demise of many medium and
small race tracks within each state and that the increase in costs to race
tracks occasioned by DEA enforcement would only serve to promote the interest
of both the participants in racing who would cheat the public and each other by
using undetectable drugs on horses to affect their performance in races.
My client, the
National HBPA was pleased that I and others were able to stop federal
legislation by essentially promising the senators and congressmen that we would
straighten out our own mess and to leave us alone. THIRTY YEARS LATER, WE ARE SINGING THE SAME TUNE. We are doing the same things again and
hoping for a different result.
SECTION II: 30
YEARS LATER
Between 1982 and 2012,
substantial improvements have been made in the identification of drugs
forbidden by racing commissions. The industry has also improved research on the permissible levels of
therapeutic drugs; have improved the scientific support for the quantitative
levels that could affect the performance of a horse and the accuracy of the
positive reports.
In order to remain
competitive in the field of racing chemistry, racing chemists' laboratories
have had to improve the sensitivity of their analytical instruments. Equipment that was adequate to make a
specific identification of a forbidden drug in the ‘80s is now no longer
employed. The cost of the new equipment,
(enzyme-linked immunoassay machines and mass spectrometry machines), has not
only been employed in most, if not all labs, but their costs have increased
exponentially. The sensitivity of
these more modern analytical machines has made it important that the
laboratories and veterinarians specify the time limits for using these drugs on
horses. Most of the time and money
spent by the laboratories today is on quantifying a list of known therapeutic
drugs to ensure that the drugs are no longer having an effect on the horses to
which they are given. Over 98% of
the "positives" that are announced by upwards of 15 analytical laboratories
today are for overages of therapeutic drugs.
However, the bidding for
testing contracts with state racing commissions has been very competitive. Testing laboratories must compete for
these contracts so the laboratories who bid the lowest amount usually get the
contracts. To add to the problems
with testing laboratories, is the fact that several states have instate testing
laboratories that may or may not be held to the same standards as the commercial
private laboratories. Because most
of the contracts are price sensitive, there are virtually no provisions in
these testing contracts for research on new drugs which could affect the
performance of horses. Further,
the use of the newer automated equipment, while speeding up the identification
process, only tests the unknowns in urine and blood against a printed "library"
of drugs for which there are specific identification patterns. The net effect of this situation is
that newly discovered drugs employed to affect the performance of horses are
not identified sometimes for years after they have been employed in the
industry. The most recent example
of this situation is the drug called Dermorphin which is also known as frog
juice.
In July 2012, I wrote an
article that was published in The Blood-Horse[2]
stating that the horse industry had failed in its desire to prohibit the use of
illegal drugs in horses.
In addition to the
inadequacies of post-race testing, the racing industry has failed to employ the
investigatory techniques all too familiar to law enforcement
organizations. Two recent cases
involving the well-known cyclist Lance Armstrong and trotting horse trainer Lou
Pena illustrate this point very well. The U.S. Anti-Doping Agency (USADA) did not successfully
prosecute Lance Armstrong because of a post-race positive sample. They successfully produced multiple
witnesses who testified that Lance Armstrong had admitted taking illegal
substances. The book, The Secret Race,[3]
was written by Tyler Hamilton and Daniel Coyle about Lance Armstrong. Hamilton was found guilty of doping and
exiled from the sport of cycling. The investigation and prosecution of Lance Armstrong has shown the
racing public what can be done with sufficient resources and sophisticated
investigation. Indeed, racing has
recently employed some of the same techniques. hrough the joint efforts of investigators for the New York
State Racing and Wagering Board with the assistance of the New Jersey Racing
Commission, trainer Lou Pena was suspended for illegally drugging horses in
nearly 700 races in New York State and amassing more than 1,700 equine drug
violations. These accusations did
not result from any post-race drug or urine test, but from a review of the
veterinarians' records. That case
is still pending, but the authorities are confident of success. Too little time, expertise and money
have been employed in developing new methods of ridding the racing industry of
cheaters. It is no wonder that
Senator Udall and Congressman Pitts have sought to improve this situation by
federally mandated policies and procedures.
SECTION III: WHAT THE RACING LEGAL WRITERS HAVE TO SAY
In 2010, Luke P. Breslin
wrote a substantial law journal article called Reclaiming the Glory in the Sport of Kings - Uniformity is the Answer.[4] Breslin traces the development of Thoroughbred horse racing, gambling on horse racing and breeding of the Thoroughbred. He also traces the
history of performance enhancing drugs and medication in horse racing; testing
development and modern day testing procedures. He criticizes the lack of concerns for the health and safety
of the horse and the leniency of suspensions on trainers. He refers to the Racing Medication and
Testing Consortium (RMTC); the Welfare and Safety Race Horse Summit; the
Thoroughbred Safety Committee; and how to facilitate change. His final recommendation is for there
to be federal intervention, development of a national governing body which is
non-federalized, establishing uniform rules and uniform super
laboratories. He stresses the
importance of the necessity for working together to improve the state of the sport. He does not produce a formula for financial
support of his recommendations.
Another important commentary
on drug use in the Thoroughbred racing industry is authored by Amy L.
(Williams) Kluesner. This review
was published in the Harvard Journal of Sports and Entertainment Law in 2012. It is entitled, And They're Off:
Eliminating Drug Use in Thoroughbred Racing.[5] Kluesner first talks about the current
drug regulations and the need for uniformity. She then refers to inconsistent state regulations, improving
transparency and uniformed disclosure. She has comments on the Welfare and Safety of the Race Horse Summit;
regulation of non-steroidal anti-inflammatory drugs and the debate on
anti-bleeding medication. She
believes the racing industry is in the home stretch on uniform
regulations. She states there are
three possibilities for creating a centralized governing body (1) pass federal
legislation; (2) develop a national governing body for Thoroughbred racing
similar to other sports or (3) allow stake holders within the industry to
establish uniform rules and regulations for all 38 racing jurisdictions. Kluesner does not have a formula for
funding these ambitious proposals.
In 2012, Laurel Benson,
Executive Editor of the Kentucky Journal of Equine Agriculture and Natural
Resources, published a paper: Down the Stretch: Reining in State
Approaches Toward a Universal Medication Rule for Racehorses.[6] This paper evaluates the existing state
guidelines in states containing major race tracks in order to evaluate the
potential roadblocks that could present themselves in the move to universal
rules.
Benson deals with the
conceptions and misconceptions of the racing public regarding the
administration of drugs to horses. She contrasts the approach of jurisdictions throughout the world with
the multi-approaches used in the United States. She cites the International Federation of Horse Racing
Associations (IFHA). She states
that the IFHA approach is an example of the way the use of medication rules
could be regulated in the United States.
A state-by-state review is
contained in the law review article. Current drug testing regimes and investigations are reviewed. In conclusion, various plans are
discussed and she emphasizes that the lack of clear distinction between
permissible and impermissible drugs throughout the horse racing industry is a
large part of the public's misconception about drugs in horses. The writer states that a national
authority is the most effective way to implement strict regulations because it
would have the authority to create rules binding on all pari-mutuel racetracks
in the country. She concludes that
over-regulation of horse racing is better than the opposite in order to protect
the integrity of the competition and to protect the welfare of the horse and
jockey.
This writer does not deal
with the financial implications of regulations.
SECTION IV:
THE PITTS - UDALL BILL
In
2013, U.S. Representative Joe Pitts (R-PA-01) and U. S. Senator Tom Udall (D -
NM) introduced the Interstate Horse Racing Integrity and Safety Act with the purpose
of: banning race day medication and racing horses under the influence of
performance enhancing drugs.
Sen. Udall states that
there are no uniform rules to prohibit performance enhancing drugs and penalize
doping violations in horse racing. "Almost all American Thoroughbreds are injected with race day
medications, a practice banned by most all other countries. Trainers can violate medication rules
multiple times, seemingly with impunity."
Federal law already
regulates interstate or "simulcast" racing for Thoroughbred, Standardbred
(harness) and Quarter Horses. This
bill applies only to interstate horse racing.
FACT: Industry groups and state
commissions have promised to reform for decades. However, since horse racing lacks a national league or
commissioner to set and enforce rules, passing the Interstate Horse Racing
Integrity and Safety Act is the only viable way to ensure safety and integrity.
FACT: Nothing in the Interstate
Horse Racing Integrity and Safety Act would prohibit a race horse from
receiving therapeutic care or drugs.
Horses should not race when needing such therapy and banning racing
under the influence of drugs would ensure they do not.
After reading the Act, and
considering its substantive and financial aspects, I wrote several
organizations and posed the following questions:
(1) Should
the racing industry have a National Drug Rule? If so, what should it be?
(2) Should
the racing industry have a National Enhanced Drug Testing Methodology and a
Minimum Standard? How to
accomplish this end?
(3) Should
the racing industry have a National Drug Rule Enforcement and Prosecution
Policy and method of enforcement?
(4) Does
the racing industry need a Funding Methodology? If so, how to achieve it, and in what amount?
(5) Can
a national drug rule and the accompanying funding and enforcement aspects be
passed and implemented in all racing states without passing a federal law and
mandating compliance? If so, how?
(6) What
should any national racing Organization Structure look like? How would any such structure, if
recommended, be staffed?
In response to my questions,
I received letters from the following organizations:[7]
American Association of
Equine Practitioners (AAEP)
Thoroughbred Horsemen's
Association (THA)
Thoroughbred Owners and
Breeders Association (TOBA)
National Thoroughbred Racing
Association (NTRA)
National Horsemen's
Benevolent & Protective Association
(NHBPA)
The Jockey Club (TJC)
The Racing Commissioners'
International (RCI)
The written responses of
each of these organizations would unduly lengthen this presentation by
referring specifically to each answer to my questions from each
organization. However, generally
speaking, the answers to questions 1-6 are as follows:
Question 1: The racing industry should have a national enhanced drug testing
methodology. The Jockey Club has
published a template for such a rule.
Questions 2 and 3: The racing
industry should have a national enhanced drug testing methodology and minimum
standards. Many of the
organizations referred to in this paper have been aggressively pursuing
enhanced drug testing methodology and minimum standards for identification of
drugs by testing laboratories. Substantial work has been done by the Racing Medication and Testing
Consortium (RMTC) on this issue. More than $600,000 per year is being spent to improve post-race blood
and urine sampling. However,
post-race blood and urine sampling is restricted by the methodology. New drugs which have not been
identified or placed in the computers used by the accredited laboratories do
not show up as positives. Drugs
such as Reserpine, EPO, snake venom, and Dermorphin are examples of drugs which
were used for years in racing prior to tests being developed to find them. I have referred to this problem in the
article I wrote for the Blood-Horse
on July 12, 2012.[8] None of the seven responses referred to
herein have come up with a mandated state or federal funding system. Asking state racing commissions and
other related organizations to fund enhanced drug tests and enforce existing
drug rules in addition to providing enhanced investigatory and prosecution
personnel are essentially unfunded mandates at this time. Neither state agencies nor federal
agencies have the funds necessary to implement these ideas. A good example of this type of enhanced
investigation and prosecution is typified by the Lance Armstrong case, which
the United States Anti-Doping Agency (USDA) prosecuted.[9] Another example is the investigation
and effective prosecution of Lou Pena by the New York State Racing and Wagering
Board which subpoenaed trotting horse Pena's veterinary records and found 700
violations of New York's rules of racing.[10]
Question 4: Many of the responses
have indicated that a national funding system would be met with stiff
resistance from the industry. The
RCI has a proposed Interstate Racing Regulatory Compact provision where fees
can be levied on the racing industry to pay for compact programs which would
include drug testing research, licensing and enforcement. Unfortunately, the regulatory compact
legislation has only been passed by Kentucky, Colorado and Virginia. It appears unlikely that an
investigatory, prosecutory and enforcement system can be voluntarily achieved.
USADA has demonstrated its
abilities in this area. It is my
belief that the racing industry must find a method of financing without calling
upon state or federal agencies for funds.
There are amply examples of an industry's successful attempts to
self-fund, namely United States Equestrian Federation ("USEF"). Although, not proposed in the current
draft of his Bill, it has been suggested that an amount measured by a
percentage to be agreed upon be assessed and deducted from all interstate
off-track wagering pools in all racing states to support the responsibilities
of USADA. Although the host racing
associations would be charged with the responsibility of collecting said sums
and remitting to USADA, the legislation would be amended to include all
participants in interstate off-track wagering. That method would not require an amendment to the Interstate
Horse Racing Act of 1978, but would simply refer to off-track wagers which were
subject to that federal act.
Question 5: Can a national drug rule and
the accompanying funding and enforcement aspects be passed and implemented in
all racing states without passing a federal law and mandating compliance?
The answer to this question
was uniformly negative. All
responses indicated that passing a mandatory compliance rule with a funding
provision would be difficult and the chances of success would be remote. None of the organizations which I asked
to respond to said question indicated that they would be in favor of passing a
federal law mandating compliance and funding such a provision.
Question 6: What should any national
racing organization structure look like?
How would any such structure, if recommended, be staffed?
Several respondents
indicated that substantial progress was being made in the areas of drug
research and education. As I have
stated before, the budget for these areas of interest are being underwritten by
voluntary entities such as the Jockey Club, the TOBA, and a few others. The RMTC has moved aggressively to
provide industry guidance and enter into agreements to share data with the
European Scientific Liaison Committee. The RMTC has aggressively pursued improvements in the laboratory
accreditation program. The
question remains whether or not voluntary support of these improvements can or
will be sustained by the industry.
I have served on almost every drug testing committee since 1970. My experience has been that without
requiring funding as a condition of participation, the programs have all been
discontinued by lack of funding or interest. The question remains, can passing a national drug rule and
the accompanying funding and enforcement aspects be passed and implemented in
all racing states without passing a federal law and mandating compliance? Thirty years ago, the industry asked
these same questions, and it responded that the industry could and would take
the steps necessary to achieve national uniformity expertise and
enforcement. We are, again, asking
the same questions and promising the same answers.
Question 7: The Interstate Horse Racing
Integrity and Safety Act of 2013 is not perfect. However, it provides a framework which can answer both the
structural and financial issues in racing. Contrary to many industry pundits, said Act does not turn
over to the federal government the administration and control of racing. On the contrary, it turns over only the
drugging aspects of racing, and to that end, establishes the U.S.
Anti-Doping Agency (USADA) as an independent, non-profit organization with many
of the skills which the Thoroughbred and Standardbred industries clearly
lacks. I believe Travis Tygart and
the USADA are prepared to work with the racing industry to write a set of drug
rules and administrative and financing rules which will clarify and correct a
number of problems which currently exist in the attempt to manage racing in 38
states with 38 sets of rules, administrators, and budgets.
State racing commissions
would continue to license associations and participants, but would turn over
hearings on drug violations to representatives of USADA and would employ expert
investigators and prosecutors to enforce said rules. Finally, appeals from decisions of the USADA hearings would
be subjected to final determination by administrative hearings.
SECTION V: CONCLUSION
Whether the issue is race
day medication, limited medication or no medication at all, the issues are the
same.
Do we need a uniform drug
rule?
If so, what should it say
about medication issues?
Should there be improved
testing and more aggressive investigatory efforts to find and identify drugs
being used on horses to affect their performance?
Should our prosecutorial
efforts be more skilled and effective?
Should these efforts be
funded on a national basis or left or left to the financial capabilities of
each racing state (jurisdiction)?
The answer to each of these
questions is YES.
Can these rules and their
enforcement be left to the judgment, experience, political and financial
capabilities of the states and industry groups?
The answer to this question
is NO.
I want to join a national
group which supports the proposals of the Interstate Horse Racing Integrity and
Safety Act of 2013 and with it the employment of the USADA to effectuate these
changes.
WHOA is the best
organization to help accomplish these ends.
[1] Corrupt Horse Racing Practices Act of 1980:
Ky. Law Journal vol. 70: (1981-82).
[2] Blood-Horse, July 17, 2012.
[3] The Secret Race, by Hamilton & Coyle
(2012)
[4] Copyright
2010, Seton Hall Journal of Sports and Entertainment Law.
[5] Copyright 2012
the Presidents and Fellows of Harvard College, Amy L. (Williams) Kluesner.
[6] Copyright
2012 University of Kentucky College of Law; Laurel Benson
[7] Response of
the National HBPA, Inc., dated March 6, 2013
Response of the Racing Commissioners International, Inc, dated march 7,
2013
Response of the Thoroughbred Horsemen's Association, Inc., dated march
13, 2013
Response of The Thoroughbred Owners and Breeders Association, dated
March 12, 2013
Response of the AAEP, dated March 7, 2013
Response of The Jockey Club, dated March 11, 2013
Response of the NTRA, dated March 6, 2013
[8] Blood-Horse, July 12, 2012
[9] See 21 U.S.
CA §2001-2003
[10] Pena v. NYSR & W Bd., NY Supreme Ct., Index No. 2012-1047
