Rock and a Hard Place: Behind the Breeders’ Cup Lasix Decision
Was it merely a change of heart that led the Breeders' Cup board of directors to back away from their 2011 decision to ban race-day medication in all of its championship races beginning in 2013?
Or could it have been the financial projections given to the board for this year's event if some owners and trainers opted not to race their horses because they were unable to be treated with the anti-bleeding drug furosemide, better known as Lasix. Maybe it was the threat of a federal lawsuit by a leading owner, citing fiduciary responsibilities of non-profit organization board members under New York law, where the Breeders' Cup is incorporated. Perhaps for some board members, the decision was made out of frustration, knowing that local horsemen's organizations have the ultimate approval rights for simulcasting the Breeders' Cup under the Interstate Horseracing Act of 1978, and the event could have been held as a hostage over medication rules.
Most likely it was a combination of all of the above.
Whatever the reason, the 14 members of the Breeders' Cup board of directors voted overwhelmingly on March 1 to revise the event's medication policy. Instead of going forward with the previously approved policy that phased out race-day medication for 2-year-old Breeders' Cup races in 2012 and all BC races in 2013, the board voted to keep the ban only for the 2-year-old races again this year.
The board came within an eyelash of rolling back the Lasix ban for all races.
The issue was discussed at a Feb. 22 board meeting at Gulfstream Park, and while sources said there seemed to be strong sentiment to stay the course for the 2013 ban, no official vote was taken. Near the end of that meeting, Breeders' Cup CEO Craig Fravel presented a budget for the upcoming year that included several potential scenarios, including one featuring a de facto boycott of the championship races over medication policy. A potential boycott would mean fewer runners, lower pari-mutuel handle, and reduced revenue to the Breeders' Cup.
When the meeting was reconvened a week later by teleconference, a motion was made and seconded to revert Breeders' Cup medication policy to whatever is in place at the host track. Bleeder medication on race day is permitted throughout North America, so this was a vote to kill the anti-Lasix movement. That vote was deadlocked at 6-6, with two abstentions. According to sources, voting in favor were Helen Alexander, Jerry Crawford, Bret Jones, board chairman Tom Ludt, Robert Manfuso, and Satish Sanan. Voting against were Antony Beck, William Farish, CEO Fravel, Roy Jackson, Clem Murphy, and Oliver Tait. Richard Santulli and Barry Weisbord abstained.
With bylaws stating the CEO must recuse himself in the event of a tie, a second vote was conducted. This time around, Alexander is said to have voted “no,” and the motion was defeated by a 6-5 tally, with the same two abstentions.
A second motion was then made, to extend the policy prohibiting race-day medication in Breeders' Cup 2-year-old races only. Lasix would be permitted in all the other championship races, a reversal of previous policy. That vote carried by a 9-4 margin, with Alexander, Crawford, Farish, Fravel, Jackson, Jones, Ludt, Manfuso, and Santulli voting in favor of what many viewed as a compromise. Voting no were, Beck, Murphy, Sanan, and Tait. Weisbord abstained. Sanan's no vote apparently was made, not in support of a race-day medication prohibition for 2-year-olds, but because he felt strongly that any ban on medication was wrong because of the potential economic consequence. According to sources, Weisbord, publisher of the Thoroughbred Daily News, which does business with breeders on both sides of the Lasix issue, did not explain his abstention.
Two days after the vote, Tait, chief operating officer of Sheikh Mohammed's Darley operation, resigned from the board, citing his disagreement with the policy change. “A true world championship, to be enjoyed and admired by all, needs to be medication free,” Tait said in a statement. “Progress is being made in all sports around the world in relation to drugs. This is not progress.”
It isn't known whether the displeasure by Sheikh Mohammed's team over the Lasix reversal will lead to a boycott of their own of the championships or stallion and foal nominations. Just as adamant as Tait in staying the course on the Lasix ban, according to sources, was Clem Murphy, a representative of Coolmore. Both Darley and Coolmore have been enormous supporters of the Breeders' Cup over the years.
Progress is difficult under American racing's Byzantine state-by-state regulatory structure. When the Breeders' Cup board voted in July 2011 to align its medication rules with the rest of the world, other groups were supporting their efforts. The chairman of the Association of Racing Commissioners International had called for a five-year race-day medication phase-out for all races, and the Thoroughbred Owners and Breeders Association was discussing a policy, subsequently approved by its American Graded Stakes Committee in August 2011, to require all 2-year-old graded stakes to be medication free in 2012.
TOBA's policy was withdrawn six months later before the first 2-year-old stakes race had been run, citing the difficulty of the regulatory process. The RCI, which has no authority, never advanced any phase-out plan. That left the Breeders' Cup board to fight national medication policy on its own.
Opposition was organized and angry. Eclipse Award-winning trainers Bob Baffert, a member of the board of directors of Thoroughbred Owners of California, and Dale Romans, vice president of the Kentucky Horsemen's Benevolent and Protective Association, have been outspoken critics of any movement to prohibit medication used to treat exercise-induced pulmonary hemorrhage. Interestingly, one of Romans' owners, Jerry Crawford, voted to end the Lasix phase-out on the same day his Dullahan arrived in the United Arab Emirates to race medication free in the Dubai World Cup.
One of Baffert's leading owners, Gary West, threatened to sue the Breeders' Cup unless the Lasix ban was reversed. West hired Sutherland Asbill and Brennan, an Atlanta law firm, which sent a six-page letter to Fravel, copying every Breeders' Cup board member. Saying the board members have a “fiduciary duty to advance the interests of the U.S. racing industry,” the letter said the decision to ban Lasix “puts the life of the horse and jockey at risk” and would have a “devastating impact on every aspect of the American Thoroughbred racing industry.” The attorney's letter concluded that West and his wife Mary have “authorized us to litigate fully and completely” if the Breeders' Cup did not reverse the 2011 policy.
The letter referenced a willingness by the Wests to contribute $1 million toward research into the cause and treatment of exercise-induced pulmonary hemorrhage. That seems to be one area both sides may agree on, and the Breeders' Cup has indicated it will also help fund research, provided it is done independently and objectively.
A simulcast agreement with Thoroughbred Owners of California is already in place for 2013, so the Breeders' Cup could have gone forward with its original policy to ban Lasix in all races. But it has yet to announce a host site in 2014, and it's unlikely, should the event return again to Santa Anita, that the TOC would vote the same approval next year in light of the rancor between Californians West and Baffert and the Breeders' Cup.
It's equally unlikely the Kentucky HBPA would approve a simulcast contract for a drug-free Breeders' Cup, either, given their strong opposition when the Kentucky Horse Racing Commission moved to ban Lasix in stakes races for 2-year-olds.
Sources told the Paulick Report the New York Racing Association's new board of directors indicated the organization isn't interested in hosting a medication-free Breeders' Cup. New York is the one state exempted from a horseman's consent clause on simulcasting contracts under federal law.
So even if the Breeders' Cup had gone forward with its policy to not permit race-day medication in 2013, it is unlikely to have found a friendly, medication-free home for future runnings. In short, the Breeders' Cup is unable to control its own destiny on some matters its board believes are important.
It is in this climate that board members felt they were stuck between the proverbial rock and a hard place.