The Jockey Club’s inherent power to regulate
Attorney and Thoroughbred breeder Amanda Simmons has an interesting legal take on how The Jockey Club can go farther than simply make recommendations to state racing commissions on the adoption of tougher medication rules. – Ray Paulick
By Amanda Simmons
I read with interest Tom LaMarra's March 30, 2012, Blood-Horse on-line article regarding The Jockey Club seeking to have stricter medication rules. As I am a huge proponent of tightening medication rules and joining the rest of the world with a complete ban on raceday medications, I applaud The Jockey Club's efforts. However, I don't think they go far enough. Respectfully, I think its leadership is being too meek and I would encourage them to be bold in order to do what is right.
Nationwide, our courts uphold a private organization's rights to set its own rules and to enforce them. Thus, I would respectfully disagree with the comment in the article that “racing has no mechanism to mandate [rule] adoption on a national level.” I believe that we do have such a mechanism and it is called the breed registry.
Forget about the state or federal regulatory bodies getting on the same page. With the current political environment, it will never happen so we have to be creative and find a way to circumvent this. Let's stop using politics as an excuse for inaction.
As a private organization, The Jockey Club has an inherent power to regulate the breed and how it is treated. Everyone who breeds and/or races Thoroughbreds submits to the rules and regulations of The Jockey Club. The Jockey Club should keep it simple.
- Adopt rules which state that Thoroughbreds cannot be entered to race on medication, cannot race on medication, and adopt uniform threshold levels that absolutely cannot be crossed.
- Create a timeframe for when these drug rules go into effect.
- Once the deadlines pass, impose strict liability.
While I hate to punish the horse, it is the mechanism and asset through which strict liability could be imposed. It is the mechanism by which people are trying to make money. When a person corrupts the asset, that asset should be removed from the chain of racing commerce. We could do that by re-defining “Thoroughbred” in The Jockey Club Rule Book and Glossary of Terms. A tainted Thoroughbred should lose its pure-bred designation. State agencies regulate based on the definitions of “Thoroughbred” and “Quarter Horse.” Such definitions are inherent with the breed registries themselves. The states, and necessarily the racetracks, are dependent upon how the breed registries recognize what a Thoroughbred or Quarter Horse is.
The Jockey Club could grandfather in the past 30 years of horses that raced on medications, but then establish that going forward no horse can be registered as a Thoroughbred if it violates The Jockey Club medication rules. The breed designation could be stripped for drug violations, meaning, that a corrupted horse is no longer a “Thoroughbred.” If a horse is no longer a Thoroughbred, it can no longer race in Thoroughbred-sanctioned events or have its progeny registered as Thoroughbreds. This concept and its end result are not so different from how other countries regulate chronic medical problems (racing ban) or prevent horses that raced on drugs from breeding. America should not be the dumping ground for horses banned from racing or breeding elsewhere.
Moreover, we should not let the fear of exceptional circumstances absorb the rule of law. Due process procedures have been and could be adopted to resolve those statistically rare circumstances where a drug positive was due to environmental contamination or the like.
Trainers (who don't own) will continue to be subject to the state regulatory bodies, much more so than The Jockey Club. However, given that owners hire trainers, the natural pressure of capitalism/commerce will encourage owners to hire trainers (and veterinarians) who honor Jockey Club rules. To be fair, owners whose horses have repeated violations of Jockey Club medication rules should be prevented from registering horses in their names or the name of any entity in which they have a beneficial interest. They should essentially be barred by The Jockey Club from owning Thoroughbreds.
The entire economic fall-out for violators would be about as severe as a deterrent as one could create and it would make everyone in the system responsible for insuring the integrity of the animal and sport. Even the racetracks would have to accept some responsibility by providing better stabling conditions for the horses since raceday drugs could no longer be used to counter the effect of decrepit, unhealthy barns. The idea of losing horses from the chain of commerce is a scary thought, but the idea of being a mediocre sport with a bad image problem is an even greater fear.
No doubt with these ideas, the devil is in the details especially with regards to the logistics in how states test differently for drugs, have different threshold levels and maintain their records. However, these issues are not insurmountable. I would encourage our leadership to stay focused in finding a resolution and not wither in the face of criticism by those who fear interference with their drug addiction or who are overwhelmed by the logistics. Let's not euphemize the problem. Our industry has a drug addiction that needs to be eliminated if it wants to stay relevant. It is time for a little tough love and strong leadership.
It is my belief that The Jockey Club is the only organization within our industry that has the inherent power to actually do something big and bold for the greater good. It should not be afraid of flexing its muscle so that it can create a nationwide, level playing field. And, while I am no Constitutional law expert it is my understanding that our state and federal courts, even in the face of contrary economic interests, will honor a private organization's rules when the purpose behind such rule is not discriminatory or an attempt to restrain trade, but is based on a preservation of integrity, improvement and safety of the breed and jockey, and long-term, international commercial viability. Moreover, a private organization's rules are much like a contract and, without a doubt, our courts uphold people's ability to freely contract. Certainly, given the current state of affairs, those would be legal arguments I would relish making before a court and against someone who argues that Thoroughbreds in America need drugs to race.
Amanda Simmons, who is licensed to practice law in Florida and Kentucky, is a partner and the chair of the Equine Law Group at Shutts & Bowen, LLP, the oldest law firm in the state of Florida. She is a small breeder and has been in racing for 23 years.