Bonnie: Why I Support the Water Hay Oats Alliance
(Editor’s Note: Ned Bonnie has a unique perspective on medication issues and the federal government’s involvement with them, having formerly served as an attorney for the National HBPA in opposing legislation in the U.S. Congress that would regulate the use of drugs in horse racing. During a distinguished legal career, he’s played many roles, prosecuting or defending over a thousand horse industry drug cases, helping write medication rules for the United States Equestrian Federation and National Steeplechase Association, and serving on numerous boards and associations. He is currently a member of the Kentucky Horse Racing Commission. In the 20-plus years I’ve known him, Ned has always come down on the side of the horse. – Ray Paulick)
I am joining WHOA – the Water Hay Oats Alliance. 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 which 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. 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 which 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 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 which 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 which 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 which 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 immune-assay 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 modem 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” which 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 who 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 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 United States anti-drugging 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, 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. Through 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. 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. 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. 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.
Senator 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: 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); and 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. The latest version can be found at here.
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 Derrnorphin 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. 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.
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.
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 No. 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 No. 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 be.en 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.
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 tum 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 United States 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 volations 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 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.