Bringing True Independence to Racing’s Anti-Doping Program

Those of you who watched or read press accounts of the hearing on the Horseracing Integrity Act (HIA) on June 22, 2018, in Washington, D.C., know that the top three topics discussed were Lasix, Lasix, and Lasix. Lost in the fog of Lasix was a promise of the legislation to bring true independence to the regulation of all aspects of an anti-doping program.

An argument was made in prefiled testimony by Association of Racing Commissioners International (RCI) President Ed Martin. This testimony is worth reviewing because it articulates a position that has been embraced by many of those who are championing the status quo.

In short, Mr. Martin believes that the current regulatory environment is independent.

I disagree.

A portion of Mr. Martin’s testimony that I believe captures the essence is below:

[Commissioners] are subject to public ethics laws, financial disclosure, and strict conflict of interest requirements that would require recusal if a matter posing a potential conflict were to come before them. The state racing regulatory agencies are managed by a Director. Racing Commission Directors are uniformly prohibited from having any financial interest in any aspect of the sport and they are subject to strict ethics restrictions required of public employees within their state. Those who claim that the state racing commissions are not sufficiently independent in order to operate an anti-doping program may not appreciate the checks and balances, oversight, transparency, and public accountability requirements associated with being a public official or public employee.

One specific conflict that is not prohibited in many states is allowing active horse owners or trainers to serve as commissioners. This practice allows for participants in the business to influence all aspects of regulation – not necessarily for the public good, but for the good of themselves or a particular group of horsemen.

Not all horsemen/commissioners put their interest before that of the public. Many have a predisposition to favor the groups to which they belong. It’s just human nature.

Depending on the issue, the predisposed bias of a horseman/commissioner could be at odds with the track, horsemen of other breeds, the betting public, and even the integrity of the sport.

I’ll provide a few recent high-profile examples of how a horsemen-oriented commission can affect regulatory policy and possibly the actions of commission staff.

California

In the past two years, the California Horse Racing Board (CHRB) has embarrassed themselves twice by appearing to manipulate the rule-making process against the public interest.

The issues involved were the passage of third-party Lasix administration and the current effort to upgrade out-of-competition rules.

They used a tactic we’ve seen over and over again — if you can’t beat them, stall for as long as possible. 

These two issues had several things in common: (1) the proposed regulations were supported by the Racing Medication and Testing Consortium, (2) they were vetted and approved as national model rules by RCI, (3) they were supported by the board’s own highly respected equine medical director, (4) they involved protecting the integrity of the sport, and (5) the CHRB voted at least once to delay the passage at the behest of their owners and associates (trainers and veterinarians).

Pennsylvania

Recently, there have been three blunders by the Pennsylvania Horse Racing Commission (PHRC) that are so uncommon that longtime industry officials cannot remember a precedent for such unusual behavior. Each breed has a blunder. In fact, the Standardbreds lead the Thoroughbreds in the blunder count 2 to 1.

On the Thoroughbred side, the commission awarded an official win to two horses — one of which had a positive test.

From the Daily Racing Form’s Matt Hegarty on May 22, 2017.

There wasn’t a dead heat, but the 2016 Parx Oaks will have two winners.

In a highly unusual settlement between trainer John Servis and Pennsylvania regulators, both Miss Inclusive, who was first across the wire, and Eighth Wonder, the second-place finisher, will be listed as the winners of the May 7 Parx Oaks last year at Parx Racing. Miss Inclusive, however, will not receive a share of the purse because Miss Inclusive, trained by Servis, tested positive for clenbuterol, a regulated medication.

John Servis trained the 2004 Kentucky Derby and Preakness winner, Smarty Jones.

On the Standardbred side, last month I broke a story in the Paulick Report about a horse in a $252,000 stake race in 2016 that tested positive for an Oxycodone, a Class 1 drug. After the laboratory called a positive test, the paperwork was apparently lost for eight months. When it did resurface, no action was taken. Now over a year and a half since the race, the commission has shown no signs of any type of follow through.

Earlier this month I reported, again in the Paulick Report, on an unfolding story of laboratory findings not being pursued as positive tests by the PHRC.

Maybe it’s just coincidence that Pennsylvania likely has the most conflicted racing commission in the country. By statute, the commission must include a person representing each of these organizations: Thoroughbred horsemen, Thoroughbred breeders, Standardbred horsemen, and Standardbred breeders.  In addition, the director for each breed must have approval of the horsemen’s representative and the breeders’ representative before being hired.

West Virginia

Let’s not forget that the meddlesome West Virginia Horse Racing Commission voted in February 2018 to cut the purse of the 2018 Charles Town Classic. The effort was led by Commissioner Ken Lowe Jr., a former president of the Charles Town Horsemen's Benevolent and Protective Association (HBPA), who had been ejected from the racetrack premises in 2011 for distributing HBPA pamphlets in violation of track rules.

The cut was made over the objection of both the track and the local horsemen’s association.  West Virginia Governor Jim Justice, in a rebuke of his own commission, asked that the decision be rescinded. Two weeks after the initial vote, the commission reversed their previous decision.

RCI Misses the point

Does anyone believe that California, Pennsylvania, and West Virginia have the only racing commissions that suffer from this kind of influence?

Some commissioners prefer to cede their responsibilities for practical progress to the special interest of industry groups, such as horsemen, who are often averse to change or have a vested interest in preserving the status quo.

Mr. Martin’s assertion that existing safeguards against conflict of interest in state statutes are adequate misses the point. Conflicts of interest are occurring now with those safeguards in place.

The Horse Racing Integrity Act offers the sport a true path to independent oversight.

That matter will be the subject of a future blog post.

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