I am delighted that Horse Racing Reform’s first blog post of the new year will begin on a positive note.
Just prior to the holidays, the Court of Appeals of the Commonwealth of Kentucky gifted us with a common-sense decision that reiterates one of the most fundamental concepts of horse racing’s medication and drug testing safeguards.
The case involved the high-profile, long-running saga of Hall of Fame trainer Graham Motion and Hall of Fame horse owner George Strawbridge Jr.
The Court of Appeals decision, unanimously decided by a panel of three appellate judges, was issued on December 21, 2018, and reversed a lower court decision that ruled in favor of Mr. Motion and Mr. Strawbridge. The Kentucky Horse Racing Commission (KHRC) subsequently appealed that decision.
The decision describes the background of the alleged violation at issue as follows:
On April 24, 2015, Kitten’s Point, a thoroughbred filly trained by Motion and owned by Strawbridge, won the Bewitch Stakes at Keeneland. The horse won a purse of $90,000. After the race, all participating horses underwent drug screening. The drug screening on Kitten’s Point indicated that the horse had 2.9 nanograms per milliliter (ng/ml) of methocarbamol in its blood. This drug is known to help with muscle cramping. By regulations, the Commission permits no more than 1 ng/ml to be in a horse’s blood at the time of a race. It is undisputed that Appellees had given methocarbamol to Kitten’s Point for months prior to the race, but had stopped giving the medication to the horse at least seven days prior to the race.
After being sanctioned by the KHRC, Mr. Motion and Mr. Strawbridge Jr. appealed to circuit court, which decided there was a lack of scientific evidence to uphold the 1 ng/ml threshold. This, the circuit court said, made the regulations unconstitutionally arbitrary and that the commission acted in an arbitrary and capricious manner.
The most relevant excerpts from the 24-page Court of Appeals decision read as follows:
We find that the 1.0 ng/ml threshold is not unconstitutional nor arbitrary. The Commission’s expert witness, Dr. Richard Sams, testified that the pharmacological effects of methocarbamol were not fully understood. Dr. Sams and other experts testified that when given large doses of methocarbamol, a horse’s impairment can be seen by the naked eye. Dr. Sams also testified that it is unknown what subtle effects smaller doses have on the cellular level because there has been no scientific testing to determine such and it cannot be readily observable. Limiting the amount of a drug in a horse’s system that is not fully understood is a rational reason for the low threshold. This is especially true in light of the broad powers given to the Commission. (emphasis added)
By limiting the amount of medications and drugs given to horses, the Commission is protecting the health of horses and ensuring the integrity of racing itself. These are significant rational reasons to uphold the regulation as constitutional; therefore, we reverse the circuit court as to this issue.
The Court of Appeals specifically addressed the argument that it is the regulator’s duty or burden to prove that the concentration found in a horse’s sample could affect the horse.
The circuit court held that the Commission failed to show Appellees violated this regulation because there was no evidence that methocarbamol could affect a horse at 2.9 ng/ml. The Commission argues that it proved methocarbamol affects a horse and that the regulation only requires that the medication could affect a horse, not that it actually did. We agree with the Commission. (emphasis added)
The court, borrowing a passage from the decision of the hearing officer who heard the case, included the following in its decision:
If the agency’s statutory mandate were interpreted to create a right to run horses carrying drugs unless an effect of the drug could be proven, every drug violation would turn into a science contest. There are scores (or more) of other drugs for which there are no studies on how the drug affects a horse. There would be no predictability and consistency in decisions. (emphasis added)
Therein lies the crux of the matter.
The Changing Landscape
There once was a time, maybe a generation or two ago, when almost everyone in the racing industry would agree that no drug or foreign substance of any kind should be in a horse’s system during a race.
Over the last several decades a more permissive medication program developed, which now includes thresholds for more than 30 approved therapeutic medications. As a landscape of permissible medication came into being, the testing of a horse’s sample underwent changes of its own. Testing equipment and methods became more sophisticated allowing for detection of smaller and smaller concentrations of drugs. At the same time, a shift from testing urine gave way to more analysis of blood serum and plasma. This facilitated the finding of drugs at even lower concentrations.
Although this particular case involved a drug with an established threshold, methocarbamol, I believe the decision could apply to the approximately 1,500 drugs or other substances for which laboratories currently test.
With the proliferation of thresholds, I believe that many horsemen (and their attorneys) had convinced themselves that regulators need to prove that a drug or other substance found in a sample had an effect on the horse when it raced.
This was never the case. Nor should it ever be.