Justify’s scopolamine mess: A regulator’s perspective

A lot has been written about the September 11, 2019, The New York Times report that Justify, the 2018 Triple Crown winner, failed a drug test for scopolamine at Santa Anita Park in California in the race leading up the Kentucky Derby. The end result was the case being dismissed out of the public eye in an executive session of the California Horse Racing Board (CHRB), never to see the light of day until The New York Times bombshell.

The dust of this dust-up had settled, or so many in the racing industry had hoped, only to be kicked up again by the person who felt slighted in this case, Mick Ruis, the trainer of the runner-up in the 2018 Santa Anita Derby.

On October 16, 2019, the Louisville Courier Journal, in an article called, “CHRB rejects Bolt d’Oro trainer's requests for hearing on Justify's failed drug test,” stated:

Mick Ruis is asking for answers. He is seeking a hearing from the California Horse Racing Board to revisit the race that launched Justify toward a Triple Crown and the disregarded drug test that has tainted that achievement.

Tuesday, that request was rejected.

“Please be advised that the Board dismissed the matter as authorized under (California) Business and Professions Code 19577(d),” CHRB counsel John McDonough wrote in reply to a letter from Ruis’ attorney, Darrell Vienna. “Therefore, further hearing on the subject is not required or warranted.”

These are probably not the last words on that subject.

There have been differing opinions of how this case should have been handled. One thing should be evident to all that follow horse racing, another racing commission in a different state would likely have responded differently. That’s because there is no national governing authority and different rules apply in each state. Add to the mix varying interpretation of rules, various personalities, and potential conflicts of interest and you have an industry adrift in a sport with declining popularity and respect.

As the executive director of the Indiana Horse Racing Commission for 25 years I oversaw the prosecution of hundreds of positive tests. Of course, none of them was potentially as incendiary as a positive test on either a Kentucky Derby entrant or a Triple Crown winner. There was another approach to address the Justify scopolamine positive test. In this piece I’ll share what my approach would have been had this come before me in Indiana and I was applying that state’s regulations.

But first, let’s quickly revisit the timeline of the CHRB action.

On April 7, 2018, Justify wins the $1,000,000 Santa Anita Derby and earns sufficient points to qualify as an entrant in the 2018 Kentucky Derby. On April 10 the post-race blood and urine samples were delivered to the Ken Maddy Laboratory at the University of California at Davis. The laboratory sent notice on April 18 that a sample had tested positive for scopolamine. The sample would be Justify’s.

Justify would go on the win the Triple Crown and then retire — all the while the public is unaware of the laboratory’s scopolamine finding. The finding is never made public by the CHRB as the case is dismissed in executive session on August 23 of last year.

In Indiana, I would have undertaken our standard protocols.

Test samples would be sent to the commission’s primary laboratory. Upon notification of a positive test we would have promptly notified the trainer. This notification is usually done in person by the stewards, assuming the trainer is stabled on the grounds or is at the track running a horse. If not, he or she would be notified by phone. The laboratory report along with the chain of custody documents linking the horse to the horse’s test number in the laboratory’s report would be provided to the trainer. Once notified, the trainer would have 72 hours to decide to elect his right to have the split sample analyzed by a referee laboratory approved by the commission. The right to split sample testing is waived if not received within 72 hours. It is not unusual for three to six weeks to pass from the time the trainer is notified of a positive test until the time the split laboratory files its report.

Under the timeframe of Justify’s positive test results, it would have been likely that the split lab results would be pending at the time of the running of the Kentucky Derby. Even had the split sample testing been expedited and reported positive prior to the Derby, no action would be taken against the horse or trainer until a hearing before the board of stewards.

In Indiana, all administrative action is held in abeyance until the split sample laboratory files its report to the commission. During this time results are kept confidential. If the split sample lab fails to confirm the primary lab’s findings the matter is dropped, and no administrative action is pursued. If the split lab confirms the primary lab’s findings the trainer will be issued a notice to appear at a hearing before the board of stewards.

Had I elected to undergo an investigation similar to the CHRB with similar findings of other horses in the stable area with low levels (less that the concentration to trigger a positive test) of scopolamine, administrative action would still have been pursued.

It is important to note that Justify had a positive test. At least that is the view from a national perspective.

Here is the Association of Racing Commissioners International’s (RCI) model rule that defines a positive test:

Positive Test is a finding certified by the Laboratory that a regulatory analyte from a Prohibited Substance is present in the sample in an amount that exceeds the regulatory limit.

Mitigating circumstances might affect a penalty but do not negate the fact that Justify had a positive test. Published reports of Justify’s concentration of scopolamine of 300 nanograms in urine exceeded the international threshold of 60 nanograms.

Even if the evidence of environmental contamination through the consumption of jimson weed was valid and convincing, I would have disqualified Justify.

In Indiana, we always disqualified horses with positive tests. Even a Class 4 drug such as scopolamine. I believe to do otherwise is a disservice to clean racing and unfair to the other participants in the race. (The only exception to this longstanding policy has come from changes in the RCI Penalty Guidelines, which currently recommend no disqualification for certain levels of the four approved nonsteroidal anti-inflammatory drugs.)

The approach, as I have stated, is a straightforward one. I believe it has all the ingredients of sound integrity-based regulation.

Fairness. Consistency. Transparency.

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