The Jockey Club’s inherent power to regulate

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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.  

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  • Scott Ramsay

    Nice try, Amanda . . . but this is ludicrous on so many levels it’s hard to know where to start.

    But, just for starters, since The Jockey Club is “a private organization,” but “everyone who breeds and races” is subject to its regulation, why is it that only a chosen few self-perpetuators are in it?  And nobody else but the Stewards of The Jockey Club (an elite of the elite) has any actual influence whatsoever.  

    It seems to me that the problems racing faces begin with The Jockey Club, and therefore its “leadership” is the last place to look for solutions.  The breeders have been breeding and registering weaker and weaker horses for generations, and now want to blame that weakness on therapeutic medication administered for the welfare of the very horses they’ve been breeding!

    Reforming The Jockey Club itself would be the first step, and applying new standards of breeding and inspection for the stud book, would be the necessary next steps, for the breed to become stronger.  As long as unsoundness is bred to unsoundness, the weak to the weak, the downward spiral will continue.  It’s probably unstoppable since The Jockey Club’s own economic interests and the economic interests of its elite rule all else, as has been the case since its inception.

  • Watcher

    Nice concept. The trouble is that TJC is as self-serving as most other organizations.  Controlled by the bluebloods whose inherent protectionism precludes equal treatment for all,  only a complete house-cleaning could render it useful in the manner Ms. Simmons suggests.  And since TJC is not subject to “outsider” interference by nasty little traditions like open electione it’s ability to represent the wishes of the entire industry is limited.

  • voiceofreason

    Amanda: The Jockey Club is a CORPORATION that has a strangle-hold on the industry and tries to PROFIT at ANY and EVERY given turn. It needs to be prodded to offer what can be found elsewhere for free (think pedigreequery.com). It must be FORCED to make any change that might not be in the direct interest of it’s own wallet. Look the the people running the day to day. Are THEY the visionaries you would rely on to clean up the sport, level the playing field, protect the health of the horse? They already are the devil we know, and have been proving it for DECADES. You’re a lawyer Amanda… you have seen what greed and lack of integrity breed. Why should these self-chosen “leaders” be allowed to control even more? Unless it is scrapped, TJC isn’t the answer.

  • http://profile.yahoo.com/HBI6ED45S7XH4IOHVURB2VXRE4 Chris Lowe

    And does Ms. Simmons race and/or breed medicated thoroughbreds?

  • Bhope

    Amanda, let’s clear up some facts.  Sixty years ago the Jockey Club was the only regulatory body in existence prior to the states’ formulation of State Racing and 
    Wagering boards and racing commissions. 

    Contrary to the few disgruntled contributors on this site, the Jockey Club is comprised of many of the top breeders and owners nationally and from around the world.  They do have the best interests of the horse in mind, however they cannot usurp the powers of the state regulators, nor can they impose rules of racing outside of those appointed bodies.  

    We certainly agree that the Jockey Club could act in tandem with those bodies and that those bodies should welcome JC input and administrative capabilities on the subject of the sport.

    The difficulty racing has is that there are more than 100 alphabet groups siphoning multi millions of dollars a year from the business, much of which is done without appropriate knowledge or understanding of the sport/business and without commissioner style authority to act in its best interests nationally.  

  • Scott Ramsay

    Let’s see now . . . about those “facts.”

    Looks like The Jockey Club has been around since 1894 — which makes it almost 120 years now (not 60).

    Yes, many of the “top breeders” are in The Club, and if that’s not self-serving, what is?  How about those who are not, and who have no say in choosing those who are?

    The breed registry is supposed to set standards for the breed.  One would ordinarily assume that would include standards of correct conformation, bone, and soundness, right?  How has the registry been doing along those lines?

    Or has it had other priorities, mainly economic priorities for its “top” members?

  • Damon Runyon

    Excellent comment.

  • Stanley inman

    Amanda,
    Thanks for taking the time
    to write this insightful piece.
    In a very straightforward way
    you have provided a clear roadmap
    for an industry comprised of many of it’s leaders
    Incapable or too disinterested to lead the way.
    It addresses all the issues
    It’s the best idea brought to the table.
    Bravo

  • Vcx123

    One simple question. Do the horses that Amanda owns run on Lasix? If she does not own any to race then when she sells them privately does she sell them with the understanding that they are not to race on Lasix? If not, why not? real simple question.

  • Upstart

    The posters are slamming Ms. Simmons unnecessarily.  She seems to be calling the JC to task for those very things.  It has been and will always be very difficult for those ruling the JC to do anything in the best interest of the breed or sport when they are so busy looking out for their own best interests,  but it is refreshing to see someone try. Thank you Ms Simmons.  Just a question: Is Mr. Strawbridge or Ms. Weber members of the JC?

  • Allynn

    people & vision @ jock club r worn way out like the people run n our nation…NEW BLOOD IS ON THE WAY!!!…A REVOLT!!!…

  • McGov

    I’m quite ignorant on this topic but I can’t see how it’s a bad idea.  Wake up the sleeping bear and lets get moving!  

  • john moore

    It’s a fine idea, and one that no one could argue with if it weren’t for the Anti-Trust Laws, which seems to me to be the only reason the JC doesn’t step up and take control. My info is that when they last used their near total power, they lost an anti-trust case (back in 1954) brought by a disgruntled owner who was barred.

  • AngelaFromAbilene

    Thank you Ms. Simmons, I’ve been saying the same thing for years. 

  • John Moore

    Quoting from an article you can find by searching on line -

    An event of major consequence to the American racing industry occurred in 1951 when the New York Court of Appeals
    reversed a lower court decision involving the Jockey Club. In Fink v. Cole,  the Court struck down the statute
    that gave the Jockey Club broad discretion to promulgate, implement, and enforce the rules governing horse racing.
    The Court held that the New York Legislature’s delegation of its licensing power to the Jockey Club was “an unconstitutional relinquishment of legislative power in violation of . . . the Constitution of this State which provides: ‘The legislative power of this State shall be vested in the Senate and Assembly.”’ Subsequent to this decision, many of the responsibilities that had long fallen under the purview of the Jockey Club were transferred to state administrative agencies.

  • David

    The breed registry thing certainly is the hammer Ms. Simmons suggests but this industry is splintered by choice and even the “kings” of the sport know it.  The JC would have to except its own golden rule will be exposed; that is they make rules and have all of the gold.  Such an acknowledgment would change the very fabric of things and dictate proletariat become involved in the Club.   But, as Ms Simmons suggests, when you haven’t got anything, you got nothing to lose and, it surely beats the Feds coming in.

  • Racingwithbruno

    what you people brainwashed about Lasix? Its all I hear, get rid of steroids, get rid of this horrible Zilpaterol, look it up, its bad and its widespread in California, and this pig juice used same in the same manner as Zilpaterol. Clenbuterol, all three mentioned all build size strenght and raised heart rate to abnormal levels. Read this about Zilpaterol http://www.horsesciencenews.co

    Stop worrying about Lasix and get to the root of the matter and eliminate steroids and its supplemental drugs like Zilpaterol from being administered.

    horses break down because they are too big, too strong and hopped up on crap they should never be injected or subjected too

  • McGov

    I agree that Lasix is the least of the problematic drugs being used.  But I also worry about what some horsemen will do if there is no Lasix…i.e. withdrawal of water 24-48 hours out.  However, as Barry Irwin pointed out, it is the perception of the problem and Lasix is on the front end of this bad perception, likely because of the “L” in the  program.  If the public only knew the half the truth, I’m sure the Lasix would drop back to where it belongs on the priority list…somewhere at the back at the line.
    The biggest but of all is, if the public did know the FULL TRUTH, I have no doubt that horse racing would be banned.  In this day and age, there is no tolerance for the practices employed by people calling themselves trainers.

  • Ridindirty3

    It’s the Jockey CLUB……they shouldn’t need an act of Congress to get things done!
    OLD-FAT-CHEAP & SCARED is no way to go through life!

  • http://www.liberationfarm.com Rob Whiteley

    Amanda, I join with Stanley and others in applauding your reasoned and beautifully presented call to action.

    Unfortunately, as Ridindirty3 and voiceofreason collectively point out, the JC is both a “CLUB” and a “corporation” (or more correctly a ‘for-profit’ corporation). Thus, it is a mistake for us to assume that insight and cogent ideas such as those that you have gifted to us can motivate people who are by nature largely self-serving. Functioning in a sacrificing or sustaining way for the common good is not in their dna or part of their often inherited empires and way of thinking or being.

    Self interest is a key evil in the failure of collective action and sometimes even accounts for the ruin of the human heart. To the extent that self interest exists and prevails, participants seek to maintain the status quo and are unwilling to put themselves or their resources on the line. When maintaining the status quo becomes the primary club or corporate objective, creative thinking and proactive action become casualties of inertia.

    In short, meaningful change is likely to occur only when the breed registry is forced to change into an entity that is of the horse people, by the horse people, and for the horse people.

  • Pjleft

    Not sure that was that what the author is talking about. Her thesis is the the JC can define what a thoroughtbred is; i.e.; a drug free horse. The various states do not curentley define what a thoroughtbred is, they leave that to the JC. However, if they don’t agree the  JC defination, they would be free to make up their own. They could add definations for “former T-breds”, “horse that would be T-breds except they tested postive for drugs”. Of course, i do not think they would do anything like just as I do not think the JC would be so bold as to do something this radical. It is much easier to hide thier head in the sand and blame the various states.

    The JC and especially the horsemen’s assocaitions do not want any change, they like things just as they are. Lax policing and minimal punsihments are the rule of the day and that is what is being protected here.

  • voiceofreason

    Bravo. Well said.

  • Barry Irwin

    Amanda, your idea is a good one. It is, however, not a new idea. People in the industry that are looking for solutions to the problem of race day meds, ultimately come to the same conclusion that you have.

    But, after much discussion, chit chat and debate, most invariably reach the conclusion that there would be no appetite on the part of those that run The Jockey Club to do this, because in the end they live in mortal dread of having their stranglehold on the breed registry challenged.

    It is the same reason that the American Graded Stakes Committee lacks the courage to unilaterally declare that graded designation for 2yo stakes in 2012 will be denied any horse that races on Lasix in a graded race.

    In theory, they have the right to do this. But they will be challenged and the AGSC lives in mortal fear that they will lose their authority.

    Those of us that want race day meds out of the game live in total frustration because those individuals charged with leading us are lacking the courage of their convictions. And the process that is in place to choose the next leaders is one that will only continue to perpetuate the status quo.

    Racing is in trouble, these so-called leaders sense this, but they have so many conflicts of interest they are incapable of moving the dial on the meter that is calculating our demise.

    The situation sucks, it has frustrated sincere horsemen and breeders and it seems unlikely to change in the foreseeable future. Sad but true.

  • AGS

    Legally,

  • ASimmons

    Legally, the Jockey Club has the ability to enact some serious change regarding drug medications.  The Fink v. Cole case cited by one of the readers is inapposite, but I’m not going to engage in a legal debate on this page on that issue. I would rather argue it in court (if that person wants to email me, s/he is welcome to do so). However, that’s not to say that the holding in the Fink case would not be used by opponents to a Jockey Club alteration of the breed definition in order to effectuate drug-free racing.  I respect and appreciate the feedback, but believe the heavy weight of the law would support the Jockey Club’s usage of its private, breed registry status to mandate drug-free racing. 

    More than anything, what is apparent from everyone’s comments is the overall disgust with the fact that the “leadership” has wasted so many opportunities; ignored the dire request of the vast majority of industry participants and fans; and failed to step up and be real leaders.  It reminds me of a scene from “American President” where the President described in a vaccum of leadersip, people follow illusions in the desert.  Such is what we have here, and drug usage in racing is one of our illusions…but I believe there are some people on those Boards who mean well, who want to do something great, but who are somehow harnessed by fear….or otherwise outnumbered.  Let us empower them, not insult them.  Let’s give them the support they need for making change. 

    I agree with the multiple comments that the Board of Directors for both TOBA and the Jockey Club have shown a laissez-faire attitude about their abilities to effectuate some real change.  Boy, wouldn’t we all love a little gumption, bravado and real leadership from those folks?   We don’t have time for excuses any more.  Our industry is dying in many ways, and necessarily retracting in others. 

    I applaud Ms. Weber and Ms. Strawbridge for their “noisy withdrawal” from the TOBA Board of Directors, but their voices of change remain desperately needed since very few people have the privilege and responsibility of sitting on a BOD that can actually do something positive.  I would vote them in again as Board members if they chose to run again.   Like the Jockey Club, TOBA’s Graded Stakes Committee has the ability to force change.  I read tonight that TOBA remains committed to drug free two-year-old racing.  Let’s see if they put some real muscle behind their statements.  I, along with seemingly many others, support their efforts.  JUST DO IT!

    As I close, thanks to Ray for giving everyday folks a chance for their voices to be heard.   I would encourage everyone who believes that America needs to eliminate raceday meds to keep raising their voices. 

    Keep being heard. 

  • ASimmons

    Ray/Brad: can you delete this? 

  • ASimmons

    Thank you for such an equally well-reasoned reply. 

  • Stanley inman

    This movement began a year ago
    With a simple speech
    By someone unafraid to speak the truth.
    The noise level is about to explode.

  • Bhope

    There are some very healthy observations here.  Because horse racing conducted legalized wagering events, state governments established racing commissions.  The commission never really had an appetite for controlling the sport aspect of the game and has not done a particularly good job at that task. The Jockey Club is the only centralized well funded jurisdiction that horse racing has and with proper adjustments and negotiation, could return to the helm of controlling the sport again.  It would be much more efficient and reduce the costs to the states while establishing unanimity across the sport.  This is recognized by most parties and an essential building block to return horse racing as an acceptable and competitive entity.  More money is gambled on most all other major U.S. sports without being regulated by governments and appears to be a very healthy exercise under the PGA, NFL, NBA, NASCAR et al.  Racing would have a head start in this regard. But it would take some work and cooperation by all the entities sans the Federal Government.  
    The Jockey Club already has a remaining toe in the water.  They have a steward in place in New York representing certain aspects of the game.  So this is doable without a great deal of legal hurdles and Amanda would get her wish.
    The proposition would indeed bring us back to unification and a centralized regulatory entity for the betterment of all.
    It is certainly worth the debate !

  • Gfpowell

    Amanda – amazing legal insight, suggestions, and comments. It is so nuce when somebidy speaks out in this industry and comes up with viable solutions. I agree with so many comments on this thread. Your solution is for us optimists in this business. Scott Ramsey points out that the Jockey Club is self-serving and to implement these changes would erode their power. I agree 100% as is most of the boards including horsemans groups. As a smalltime owner/trainer I just wanted to train, race, and win, but I quickly found out about these powers once I was in the money 28% of the time. They made my life a living hell! The examples are too numerous to address on this thread. However, the President of The Ontario Jockey Club, Frank Stronach has won the majority of stake races @ Woodbine since he has been President OR the offspring of his sires. The other board members Eugene Mekynk has won through the leading trainer Mark Casse. I Dare any small owner/trainer to try to get stalls there! At one point, Stronach’s Adena Springs had 90 stalls @ Woodbine in combination with his offspring!! Talk about monopolizing the market! I could go on and on, but if you are not training for a board member forget about getting a fair shot at making a living, but who said life is fair?

  • Bhope

    Gfpowell, your accusations are surprising and astounding relative to Woodbine’s (WEG)
    policy regarding stall space.  These would be a drastic change of policy there, if true.
    First of all Stronach has never been President of OJC or WEG.  He was only on the board for a very short time.  The Woodbine policy on stall space was limited to 30 for years. The implementation of a Fort Erie B meeting was established to accommodate the overflow of applications and served its purpose well. We would like to hear more about the “they” that made your life a living hell.  We think that there is some confusion here.

  • Gfpowell

    Well the last few years has stated Stronach as the President of The Jockey Club on the WEG website. It also had a list of board members including Melynek and Andy Stronach (Frank’s son). It seems strange that they would publish those names in error. One needs to just look at the current Board of Directors who consist of owners and trainers who have many stalls there, win many races, and their trainers are usually in the top ten. This further supports my comments all along: you have to train for a board member in order to get a chance of stalls and races there.

  • Gfpowell

    I’m in the process of developing a 100% hacker-free website and blog with no moderation. Therefore, it will have a strong legal caveat. This website received countless comments about Woodbine and the TB racing business as a whole! It was hacked into by a virus (wonder why?), but we did maintain our email list. It should be up and running by the summer. Myself and others will post experiences. However, we will welcome ALL comments. We will let you know if you care to peruse. I will share my stories and experiences there. To my knowledge, Woodbine has not adhered to the 30 stall limit. As of last year, many trainers had more than 30 stalls. For example: Mark Casse an entire barn (45 to

  • Garrett Redmond

    What movement?

  • Indulto

    I think the Jockey Club’s alleged fear of having its authority challenged in court needs to be weighed against today’s climate of greater public concern for the welfare of thoroughbred horses, and outrage at their too frequently convenient disposal. As an outsider, I can’t evaluate the charges of self-interest among influential breeders, but IMO complete transparency — with no meetings behind closed doors, public input enabled from interested parties, full video and audio webcasts with complete archives and transcripts, and published majority and minority opinions on each decision — would go a long way toward minimizing the impact of any such negative influence.

    There needs to be a good-faith effort on the part of the Jockey Club to create a competent, supportable task-force whose output will be accepted and implemented in good faith. That seems a preferable alternative to one established by that private club of campaign-financed self-interest known as Congress.

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