At a meeting on Monday, the rules committee of the Kentucky Horse Racing Commission voted to move forward on revised language to the absolute insurer requirement for trainers on drug positives.
The meeting was well-attended by horsemen, owners, and jockeys and prompted considerable but civil discussion on the difficulties of properly assigning blame for drug positives. Currently, the state's language (which aligns with Association of Racing Commissioners International model rules) gives stewards the ability to consider mitigating and aggravating circumstances in the case of a drug positive but still requires them to assign a suspension and/or fine within a recommended range.
The absolute insurer rule, which exists in some form in all states, treats trainers as the “absolute insurer” of the horses in their care, which means they cannot argue someone else is responsible for the introduction of a substance into a horse. Trainers also cannot absolve themselves of responsibility for a positive by proving or claiming they were unaware of how a substance was introduced to a horse in their care.
In 2017, Franklin Circuit Court Judge Thomas Wingate overturned the commission's penalties against trainer Graham Motion for a methocarbamol positive from 2015. Wingate questioned the scientific support for the penalties given to Motion but also stated the absolute insurer rule violated the state's constitution because it did not permit Motion to present evidence questioning the methocarbamol threshold level in Kentucky or to present evidence of environmental contamination.
Marc Guilfoil, executive director for the KHRC, said the rule changes were partly a response to Wingate's ruling and partly a response to concerns from horsemen.
“We wanted to simplify that rule that gave them the right to present their case and gave the stewards more latitude in making the decision,” said Guilfoil. “The stewards are the people at the racetrack that know the parties involved. They're there on a daily basis, they know the cases and we'll let them adjudicate and use the information they're getting. We have confidence in our stewards.”
Guilfoil said this change could allow stewards to choose not to assign a fine or suspension for a positive that is later shown to be the result of contamination to feed or hay. As it stands now, stewards are not permitted by law to exonerate the trainer in this type of situation. The rule change will not prevent connections from being ordered to forfeit their portion of the purse, since the horse will still have raced with a prohibited substance in its system.
The five-person committee directed John Forgy, legal counsel for the KHRC, to draft proposed language which would be circulated to the KHRC and meeting attendees. Guilfoil estimated it may take several months for the new language to be perfected and approved by the entire commission.
Guilfoil agreed that opening the door in this way could run the risk of allowing bad actors to escape penalties when they shouldn't, but he believes the stewards have the experience to spot those situations.
“I'm sure that's going to be tried, but we have full faith in our stewards and full faith in the racing commission that we're going to come to the right penalty,” he said. “This is a democracy. I'm all for when we catch the cheaters, getting rid of them. I think there's very few people who cheat in this game, and the ones who do, we need to get rid of them, but everybody needs a fair shake.”
Guilfoil said if this issue is being raised in Kentucky, he expects other states could see challenges to their absolute insurer rules as well.
“I think everybody needs to look at this [issue],” he said. “We pay close attention to what goes on in court cases in other states and look at our rule book to see if we might have a deficiency or something that's perceived to be unfair.”
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