A perennial lament amongst racing fans and all industry stakeholders is what sometime appears to be inexplicable penalties for the violation of racing rules. Sometimes, serious infractions result in modest penalties. While, at other times, even routine infractions result in different penalties. It is not unusual for regulators to fail to inform the public why they assess what appears to be an insufficient penalty.
Over the course of this year, I will be keeping my eye out for these kind of penalties and explore the appropriateness or inappropriateness of the penalty and share my thoughts with you.
In this column, I’ll explain the rationale that some commissions use to justify penalties that are less than those recommended by the RCI model rule.
When considering a penalty for a positive test the first thing a regulator (usually the stewards) does is consult RCI’s Uniform Classification Guidelines for Foreign Substances and Recommended Penalties Model Rule.
The RCI has grouped approximately 750 drugs and other substances into one of five classes based on 1) pharmacology, 2) drug use patterns, and 3) the appropriateness of a drug for use in the racing horse. Those that are most inappropriate and have the greatest potential to affect a horse’s performance are classified as Class 1, while those least likely to affect performance are in Class 4 and Class 5.
Each drug is matched with a penalty category A, B, or C, which assigns a specific fine and/or suspension based upon the seriousness of the drug.
While some may quibble with the classification of a certain drug or its corresponding penalty, in my experience, I have found the underlying process for classifying drugs to be fair and the model rule itself to be absolutely critical in determining penalties for violations. Furthermore, on a macro-level, adherence to this document is the only thing that provides any semblance of uniformity in penalties across the U.S.
Deviation from the Recommendations
If it is as simple as looking up a drug, finding its classification and penalty category, and matching it on a matrix for penalty categories A, B, or C, then why do we so often see disparities among penalties for the same drug?
What I have observed over the past 25 years are a few basic patterns. First, some states deviate from the recommendations more often than others. Second, the more serious the drug and the greater the recommended penalty, the greater the likelihood is of a settlement at less than the minimum. Last, the deviations are not usually a product of the stewards at the track but are decided by commission personnel at the agency’s headquarters after an appeal of the stewards’ ruling is filed.
We see those patterns play out over and over again.
I think that the reasons usually fall into one of four categories:
- Institutional inertia or, in other words, lack of will.
- Lack of resources, which would include the lack of knowledge of commission staff or a lack of legal expertise or funding to prosecute.
- Statutory limitations, which include the inability for regulators to assess a penalty that is consistent with the severity if the violation.
- Mitigating circumstances.
Of the four reasons listed above, I believe that mitigating circumstances is the only reason that can be invoked to lessen a penalty and still maintain the integrity of the racing product.
The lack of resources or statutory limitations may not be the fault of the regulators. Nevertheless, regardless whom is to blame, such factors can limit a commissions ability to have racing in their state conducted with the highest level of integrity.
There are, of course, legitimate circumstances that call for a reduced penalty. In my experience, those cases are relatively few and far between. Ideally, the rationale should be explained on the ruling issued. That way, the public can determine for themselves the appropriateness of the penalty.
I have seen, however, what appears to be regulators using mitigating circumstances as a crutch to justify otherwise inexplicable decisions.
The are many reasons to try and justify a reduced penalty. For the purposed of this column I’ll just focus on the singular issue of commissions relying on speculation as a basis for invoking mitigating circumstances.
The RCI model rule on recommended penalties does not define mitigating circumstances. It does, however, provide some guidance when considering penalties. Below is, in part, some of that advice:
Because the facts of each case will vary, an exhaustive list of mitigating or aggravating circumstances is not practical. Generally, mitigating or aggravating circumstances must be shown by persuasive, credible evidence that the circumstances were actually present in the instant case, not mere speculation that the circumstances could have been present. (emphasis added)
The guidance from the RCI is clear. In arguing for mitigation in the case of a positive test, presenting alternative theories on how a drug or other substance could have been present in a horse’s sample is not sufficient.
That’s where regulators sometimes go wrong. They substitute speculation for fact and act accordingly.
To the detriment of the sport.