The following article was submitted by Joe Gorajec, who since 1990 has served as executive director of the Indiana Horse Racing Commission.
On Nov. 15, 2014, the Blood-Horse published an online commentary by Maggi Moss entitled “When Regulation Runs Amok.” In her commentary, Ms. Moss attempts to paint a picture of Indiana racing being out of control, particularly as it relates to drugs and prohibited foreign substances. Much of her editorial concerns national issues that are not unique to Indiana. Unfortunately, many of the Indiana centric claims are either false or misleading. Ms. Moss is an accomplished owner and a vigorous advocate. I respect her many accomplishments in horse racing – but I could not take greater issue with the claims in her commentary.
The Tom Amoss case
What Ms. Moss fails to disclose, and what is a likely explanation for the tenor and timing of her commentary, is the fact that she formerly provided legal representation to her trainer, Tom Amoss, in a three-year-old medication dispute with the Indiana commission staff. In that action, a motion has been filed by the commission staff seeking an administrative decision in its favor. That motion was the subject of an oral argument on Oct. 30, 2014, and is now ripe for decision. In that disciplinary action, Mr. Amoss potentially faces a 60-day suspension as a result of a positive test in 2011.
Tom Amoss, by the accounts of many, is a fine fellow and a hard-working horseman who strives to run a clean stable. As Indiana's perennial leading trainer, he is certainly an important part of the Indiana Grand racing program. None of that matters, however, when recommending penalties for a medication violation – nor should it.
Ms. Moss suggests that there is an issue of selective enforcement in Indiana. Nothing could be further from the truth. In Indiana, a leading trainer is subject to the same penalty for a medication violation as the trainer of a two-horse stable of $5,000 claimers. When a medication violation is involved, Indiana looks to the Association of Racing Commissioners' International (RCI) Model Penalty Guidelines when recommending penalties. Unlike some other jurisdictions, Indiana does not allow trainers to buy their way out of a recommended suspension for a drug positive. In such a scenario, a trainer would pay an increased fine in exchange for an agreement not to impose a suspension. A fine (even a substantial one to a highly successful trainer) can then serve as a routine cost of doing business. Based upon my extensive experience as a regulator, it does not serve as an effective deterrent.
Moreover, I believe that this practice erodes confidence in the sport and is unfair to those horsemen who race in full compliance with the existing regulations.
The proposed 60-day penalty for Mr. Amoss is not being recommended because the testing of one of his horses revealed one single Class 4 positive test in Indiana. That penalty is being recommended because Mr. Amoss had multiple positive tests within a 365-day period leading up to his methocarbamol positive on Oct. 21, 2011, at Hoosier Park.
The RCI Penalty Guidelines recommend an ascending stair-step approach to multiple drug violations that occur within a 365-day period. The seriousness of each foreign substance in question is built into the Penalty Guidelines by providing different classification categories. In addition to the positive test in Indiana, horses trained by Mr. Amoss tested positive for Class 4 foreign substances on Dec. 5, 2010 (Fair Grounds), on May 14, 2011 (Churchill Downs), on Oct. 7, 2011 (Keeneland), and again on Oct. 22, 2011 (Keeneland) – although the last infraction was not taken into account in my recommendation of the 60-day suspension or related fine because it occurred after the Indiana positive.
If the standard minimum RCI Penalty had been applied to Mr. Amoss for the preceding violations, he would have already served up to three separate suspensions – not counting the pending Indiana case. Instead, Mr. Amoss has served no suspension for any of the three preceding (admitted) violations committed in other jurisdictions.
Let's be honest. How many horsemen, racing fans or members of the general public (not acting as an attorney for an alleged violator) think it is appropriate for a person with five positive tests at four tracks in three states within one year to serve not a single day of suspension?
I do not know what the outcome of the Amoss case will be. That will be decided by others. Win or lose, I am comfortable that Indiana has taken a principled approach in recommending his penalty. Regardless of the number of attorneys a horseman may have (in the pending case Mr. Amoss has very accomplished lawyers), or the likelihood of the prospect of time-consuming litigation, the Indiana commission staff remains steadfast. We will continue to consider and to recommend penalties we believe are appropriate and consistent with the industry's uniform standards.
Ms. Moss's article expresses a frustration resulting from the media's failure to look into her (self-styled) “troubling allegations.” In fact, others similarly situated have on several different occasions leveled similar unfounded allegations against the commission staff in the press that have ultimately proven (under close scrutiny) to be nothing more than rhetoric. A good example is the oft-leveled claim of an asserted lack of due process. In more than 20 years of Indiana racing there has not been a single decision by a court reviewing an Indiana disciplinary action that has supported a lack of due process claim.
The Ross Russell case
Most recently, Indiana has been in the racing press regarding its prosecution of two cases – both involving the alleged administration of unauthorized race-day medication violations. The main actor is practicing veterinarian Ross Russell – who faces a possible 20-year suspension.
Some context is helpful. As reported in the Administrative Complaint against Russell, Indiana has a history of taking strong action when a prohibited race-day administration is discovered.
This dates back to 2001 when it was determined that a licensed practicing veterinarian had administered a race-day injection. This incident involved a single vitamin shot. The ultimate penalty imposed was a $5,000 fine and a one-year suspension. In 2005, another veterinarian was banned from Indiana racing for approximately two years for race-day administrations. Indiana's most recent case of this nature happened in 2009. In that case, a veterinarian provided a trainer with a syringe and needle containing a non-salix diuretic commonly referred to as “clotol” for the purpose of a race-day administration. That veterinarian was suspended for four years.
With respect to the Russell case, there has been conversation in some quarters regarding the penalties, or lack thereof, against others involved in the investigation. The Administrative Complaint clearly states that the investigation remains active. In other words, disciplinary action involving others will be forthcoming and will be initiated when appropriate.
A contact sport
I have come to learn that regulation can be a “contact sport.” Racing participants that run afoul of the rules (and sometimes their attorneys) are typically not very happy about it. Very often, that leads to a public attack on the regulator as a defense strategy (“the best defense is a good offense”). This tactic has been taken before in Indiana – and each time the charges against commission staff have proven to be unfounded as the process has played out.
Indiana's proactive approach to regulation has historically led to criticism. That's the cost of consistently challenging the status quo. That was the case when Indiana was the first state in North America to pass the RCI Model Rule to regulate anabolic steroids in 2007 and has continued through other initiatives including, most recently, being the first in the nation to regulate Cobalt.
Despite the initial criticism, those initiatives were well worth the effort. Case in point – since the commission began regulating Cobalt for the final five weeks of the Indiana Grand race meet, Cobalt levels for Thoroughbred racing have been near pristine. What other racing jurisdiction can make that claim?
Room for improvement
Ms. Moss does bring up one legitimate issue that is ripe for improvement. Indiana should improve the way it communicates positive tests and pending positives. I have already begun a dialogue with horsemen on this issue and hope to present a rule and/or policy change to the commission soon. This change hopefully will be in place prior to the beginning of the Indiana racing season next spring.
Finally, Ms. Moss has opined about testing levels. She sets her sights on racing laboratories testing for drugs at picogram per milliliter concentrations. As stated in her commentary “[T]he media also should ask what our labs are doing to test as they never have before and trying to measure amounts that are simply immeasurable.” She goes on to add – “[T]he immeasurable amounts, by all scientific data, could not ever remotely affect the performance of the horse.”
This is simply untrue.
According to Richard Sams, PhD, Director of the LGC Science Inc. Laboratory in Lexington, Ky., such concentrations are measurable with modern instrumentation and are relevant for many drugs and medications. In fact, the availability of methodology that allows detection at picogram per milliliter concentrations allows testing of blood samples for these substances thereby improving the reliability of withdrawal time recommendations.
Moreover, a number of drugs could be administered on race day at effective doses that would be undetectable in blood samples if not measured at concentrations below a nanogram per milliliter (i.e., picogram levels). These drugs include most corticosteroids, the anabolic steroids, glycopyrrolate, and clenbuterol. Meanwhile, the RMTC (which independently evaluates information from the scientific community) has proposed and continues to propose model rules, which contain thresholds limits that are to be measured at varying picogram levels.
Imagine a scenario where a race day cocktail of dexamethasone, betamethasone, methylprednisolone, stanozolol and clenbuterol went undetected in a post-race test if the laboratory is not permitted to test and report findings below a nanogram per milliliter. This becomes reality when these drugs are no longer measured in picograms.
That scenario would be abhorrent to almost all industry stakeholders. But for those in the “anti-picogram” crowd, it might just be a dream come true.
Editor's Note: The original version of this article stated that Maggi Moss is currently representing her trainer, Tom Amoss, in an ongoing case with the Indiana Horse Racing Commission. Moss withdrew from the case over a year and a half ago.
New to the Paulick Report? Click here to sign up for our daily email newsletter to keep up on this and other stories happening in the Thoroughbred industry.
Copyright © 2017 Paulick Report.