This time last year I wrote a piece titled, “Thanksgiving: These Regulatory Groups Deserve Your Appreciation,” in which I lauded the work of the Association of Racing Commissioners International’s (RCI) most important contribution to the racing industry — the work of its Model Rules Committee.
I wrote, “Although the lack of uniformity in rules is one of the industry’s most persistent complaints, it’s the RCI through its Model Rules Committee that brings some semblance of order to racing’s regulations.”
It is not the fault of the Model Rules Committee that racing rules are not uniform. Except in some cases it is. I’ll explain myself in a moment. But first, let’s discuss what a model rule is or, at least, should be.
I believe that model rules should be synonymous with best practices. Also, each model rule should be written in such a way that its implementation, if adopted, would be consistently applied from state to state. In other words, it would promote uniformity. This understanding, I believe, is simple and straightforward and would be embraced by everyone within the racing industry.
I give you an example of a poorly written model rule.
The RCI has a model rule on necropsies. My attention was drawn back to this rule recently with the intense attention over the racehorse that was dumped in a West Virginia landfill.
The rule itself provides a good foundation for a commission to establish a necropsy program, but it fails to require that a necropsy be performed on all horses that expire at the track, which should be the key element of a necropsy rule.
The first sentence of the model rule reads: The Commission may require a postmortem examination of any horse that dies or is euthanized on association grounds. (Emphasis added.)
And what exactly does “may” mean?
It means anything you want it to mean. As far as the number of horse necropsies, it could mean “all,” “most,” “some,” “a few,” or “none.” In other words, a racing commission could have adopted the RCI model rule and have performed few, if any, necropsies.
That doesn’t mean that all regulators are oblivious to the importance of necropsies and the subsequent disposal of horses. For example, in 2006, when I was the executive director of the Indiana Horse Racing Commission, we took the qualifying term “may” and replaced it with “shall.” So, for the past dozen years, every horse that expired at a track in Indiana — for any reason — had a necropsy performed.
There are other states, of course, that value the information that necropsies reveal.
I bring this all up for two reasons.
The first and most obvious reason is to fix this particular rule. It’s an easy fix — just substitute the word “shall” for “may.”
One thing about regulators and new rules: Oftentimes rules are written in such a way that enable regulators to continue with their current practice, whatever it is, rather than improve their performance. This necropsy rule is such an example.
The other reason I’m addressing this topic is because of all the reforms that are now being contemplated across the country. We all know that the reverberations from the catastrophic breakdowns at Santa Anita Park have led to various reforms being enacted across the country, with several more on the table for discussion.
Sooner or later, these issues will be taken up by the RCI’s Model Rules Committee. (Note to RCI: It should be sooner, not later.) Many of these rules should obligate the commissions or tracks to perform some new function or increase their oversight in some way. These are just the types of rules where regulators like to give themselves flexibility. This “flexibility” can simply be a strategy for not fully implementing a reform.
Money is often given as the reason for lapses in strong, effective regulation. I claim that money is not the primary factor, it’s will. I do agree that most commissions have funding issues. That is just a plain and simple fact of life. But there are other ways to address the financing of much needed programs that deal with safety or integrity.
Many racetracks and horsemen’s groups receive tens of millions of dollars from alternative gaming such as slot machines, casinos, and historical racing. There is no good reason that a small fraction of this money should not be diverted to help fund necessary reforms.
Racing commissions have the tools at their disposal to ensure that needed reforms are implemented. If the tracks and horsemen are reluctant to help fund these initiatives, the commission can simply decrease the number of racing dates or the number of races run each day. They can take the savings from those decreases to fund the reforms themselves. Either way, the money is available.
So, as I said, the commissions have the tools.
The question is, do they have the will?