Stating The Case For Medication Reform

by | 08.24.2015 | 11:33pm

For those of us who are following (or intimately involved in) the nationwide conversation about Thoroughbred industry medication reform, the last couple of weeks have been some of the most colorful we've had yet.

In major industry forums – The Jockey Club Round Table Conference and the Saratoga Institute on Equine, Racing & Gaming Law – supporters of the Thoroughbred Horseracing Integrity Act of 2015 (THIA) methodically laid out our case. In response, detractors are now throwing far-fetched arguments against the wall to see what sticks.

For me, much of this has been a trip down memory lane to the mock trials we had in law school — with all of their imaginative and sometimes rather fantastical arguments. And since I know that the facts are on the side of supporters of THIA, I've enjoyed the current debate.

Take, for instance, the argument by some that this legislation isn't needed because states have the ability to enact the Association of Racing Commissioners International's (RCI) model medication rules (National Uniform Medication Program, or “NUMP”) on their own. Their argument is that if all racing states would just enact NUMP, they could collectively handle nationwide anti-doping matters better than any single outsider.

The fact is that since the RCI endorsed the NUMP, less than a quarter of the horse racing states — and none of the major racing states such as New York, California, Florida or Kentucky — have fully implemented the program. Only 20 percent of all races in the U.S. are run under the full set of these uniform rules. Disarray remains the norm.

Further, as with any anti-doping program, the NUMP requires consistent updating and upgrading to keep up with violators, and by taking a state-by-state approach those updates and upgrades will be done on a piecemeal basis. For example, NUMP compliant equine drug-testing laboratories have missed critical positive tests and there are strong suggestions by regulators that the NUMP lab standards require further strengthening. Any updates to those requirements would require approval by 38 distinct government organizations, each with its own political processes, constituencies, desires, goals and impediments. The same would be the case with regard to changes to the NUMP medication lists or penalty provisions. As NUMP will constantly be in flux, so will the rules among the various racing jurisdictions.

The unfortunate fact is that two major dynamics play against the best efforts to come to uniform, comprehensive anti-doping regulations: The industry's state-by-state governance system, and the inherent conflict of interest in self-regulation.

That's why we believe that only a single, independent, non-governmental authority like the U.S. Anti-Doping Agency (USADA) can help bring uniformity and the high standards of testing and enforcement required to maintain the sport's integrity in the minds of our fans, bettors and the public.

But for some of those opposed to THIA, USADA's sterling history of performance and effectiveness is subject to petty pokes and attacks. Despite USADA's proven ability to adapt and scale to its ever expanding list of oversight responsibilities in sport, some voice concerns that horse racing is too different, too big, too ungainly to come under their purview.

Of course, this has already been thought through. The entity created by the THIA, the Thoroughbred Horseracing Anti-Doping Authority (THADA), would have a board composed of USADA and racing industry experts, and its anti-doping program would be based upon the marriage of the best of USADA's world-class experience in enforcement and testing with the deep knowledge of persons who have had long-term involvement in our sport.

Some argue that THADA can never be successful because of the differences between human and equine physiologies, but the need and method for effective testing protocols, uniform standards and penalties, as well as proper lab accreditation is the same. USADA quickly built a world-leading anti-doping program for United States Olympic athletes following its inception in 2000.

Suggestions that THADA cannot do the same for Thoroughbred racing are wrong. It would enjoy participation and input from our industry and would implement best-practices tailored to horses and racing for uniform testing, uniform penalties, well-designed out-of-competition testing, and fully accredited labs to deter cheaters.

We find the THIA approach so compelling that we hope other breeds will sign on. While some detractors have pointed to the fact that THIA currently does not include non-Thoroughbred racing, let me assure you that the Coalition for Horse Racing Integrity is more than willing to support amendment of the bill to cover other breed organizations that wish to pursue this path.

Finally, one of the more far-fetched arguments going around is that THADA would have the right to summarily shut down interstate wagering regarding a track that is not compliant with THIA or where horsemen are consistently violating THADA's anti-doping program.

First, the bill provides that THADA's jurisdiction is over “anti-doping matters,” and it further provides that the bill does not “modify or eliminate any of the consents, approvals or agreements required by the Interstate Horseracing Act of 1978 or impair or restrict the operation and enforcement of state law or regulation of Thoroughbred horse racing with respect to matters unrelated to anti-doping or for violations of state or federal criminal law.” Second, where there is violation of the anti-doping rules or even serial violations, the person(s) who commits the violation would be penalized according to the rules then on the books — neither tracks nor states would be sanctioned.

The history of this industry shows that a state-by-state regulatory approach to medication matters simply isn't capable of effectively identifying violators, deterring cheaters, and administering penalties.

We know that change isn't easy and that well intentioned people skeptical of any approach involving Congress (even if the federal government will have no regulatory role) will have questions and concerns. The Jockey Club, along with all members of the Coalition for Horse Racing Integrity, is happy to work with others on points of interest and substance. But we also believe this is a serious discussion and that it should be based on facts, not conjecture, supposition or hyperbole.

The creation of THADA would be the result of a unification of representatives of the world's top anti-doping body with people who have real-world Thoroughbred industry experience with the goals of protecting our athletes and the integrity of our game.

And it would accomplish something that we all claim to want: national, uniform standards, penalties and enforcement.

Let's start with that as common ground and have a real debate on how best to get there.

Marc Summers is the vice president and general counsel of The Jockey Club.

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