The result chart for the third race at Monmouth Park on July 5, 2019, was for 2-year-old New Jersey-bred maidens. No one had any idea at the time that this race would come to underscore the lack of uniformity, poorly drafted regulations and bad judgment of regulators that continue to plague the sport of horse racing in the United States.
Background
The winning horse, Shield of Faith, won by eight and a half lengths at odds of 2.90-1 and raced without the performance enhancing effects of furosemide, a powerful diuretic also known as Lasix. The winning share of the $56,250 purse (including a $11,250 breeding enhancement) was $33,750. The horse is owned and trained by Glenn R. Thompson and bred by Quiet Winter Farm, owned by Mr. Thompson’s son, Parker.
According to Mr. Thompson, he was quite surprised when notified that his horse had tested positive for a muscle relaxant, methocarbamol. Mr. Thompson claims that he had not had methocarbamol administered to his horse. This drug is a therapeutic medication for which a threshold level of 1 nanogram has been established. The report from the New Jersey Racing Commission’s (NJRC) primary laboratory, Truesdail Laboratory, indicated a concentration of 5.0 nanograms.
Mr. Thompson elected to utilize his due process right and had a split sample sent to a referee laboratory. He chose the Kenneth Maddy Laboratory at University of California at Davis. The results from the Maddy laboratory indicated the presence of methocarbamol, but at a concentration of .75 nonogram with a measurement of uncertainty of .01 nanogram. The results did not answer the question of how the drug got into the sample (or horse) but at least it was under the threshold, and thereby permissible and therefore not a positive test. At least that’s what Mr. Thompson thought.
Hearing
I’ll cut to the chase.
On Oct. 16, 2019, the board of stewards at Monmouth Park held a hearing and then issued a ruling (signed by only two of the three stewards) that fined Mr. Thompson $500, suspended him for 15 days and disqualified the horse, thereby requiring the forfeiture of the purse. No mention was made in the ruling of any concentrations or the fact that the split sample result was under the regulatory threshold.
I listened to the tape recording of the one-hour-and-17-minute hearing.
It may be relevant to point out that Mr. Thompson indicated that in 40 years of training horses, he had never been penalized by fine or suspension for any drug infraction. In searching the trainer ruling’s database maintained by The Jockey Club, I found no ruling of any kind (except the one in question) on Mr. Thompson.
Mr. Thompson has appealed, and the case is pending before the NJRC.
Industry standard
I was a regulator with the Indiana Horse Racing Commission (IHRC) for 25 years. I was its executive director from 1990 to 2015. In the course of that time, I had hundreds of positive laboratory findings cross my desk – maybe a thousand or more. In roughly half of those drug findings, the trainer exercised his or her due process rights and elected to have the split sample sent to a referee laboratory.
Not often, but on occasion, the split laboratory did not confirm the primary laboratories findings. Sometimes they could not detect the presence of the drug. Most often, however, the drug was present but at a concentration under the threshold of that therapeutic medication. I’ve experienced that happen a dozen or so times. Every one of those cases was handled the same. The matter was dropped. Case dismissed. Done.
There was no decision to be made really. It was automatic. The laboratory results made the decision for me and the board of stewards. If the concentration found by the split sample laboratory is under the regulatory threshold, then there is no violation. No hearing is held.
I’ve always believed this was standard industry practice.
I decided to double check myself and see how Kentucky would have handled a case like this. So, I asked Barbara Borden, the chief steward for the Kentucky Horse Racing Commission (KHRC), how she would handle a situation when a split sample finding was under the threshold for a therapeutic medication.
She said, “We would consider the finding not confirmed and dismiss the case. No hearing would be held. The purpose of a split sample program is to offer the owner and trainer of the horse due process. We all should be sure that there has not been an error made at the primary lab.”
During Ms. Borden’s eight-year tenure at the KHRC, she has had few such cases when the split laboratory finding was under the threshold. “In each instance we dismissed the case,” she said.
I asked Dr. Marry Scollay, the executive director of the Racing Medication and Testing Consortium, about her understanding of the industry standard in instances when the split sample finding is below the threshold. She could not speak for every jurisdiction, but generally speaking, she said, “It is the same as is handled in Indiana and Kentucky. That there is no violation, no hearing and the case is dismissed.”
In my opinion, any state that has a regulation that would permit a violation under these circumstances has a bad rule.
Here is a portion of the NJ split sample rule with its arguably conflicting language:
If the outside laboratory testing does not confirm substantially the testing laboratory findings, any outstanding allegation or finding that the foreign substance in question was in the horse's system at the time of the subject race shall be dismissed. If the testing laboratory detects a foreign substance at a level that is at or above a threshold established in this chapter, the overage shall be deemed confirmed if the outside laboratory confirms the presence of that foreign substance in the split sample at any level.
Oh, but there is more
What I came to learn by listening to the stewards’ hearing was that Mr. Thompson was not the only trainer who had a horse that tested positive for methocarbamol at Monmouth Park in 2019. According to information at the hearing (and this was not disputed), there were at least two other methocarbamol findings by the primary laboratory that a split sample laboratory found to be substantially under the concentration initially reported.
As stated earlier, the concentration of methocarbamol in Mr. Thompson’s horse decreased from 5.0 nanagrams to .75 nanogram, a decline of 85 percent. Testimony at the hearing (which was not disputed) was a second horse’s methocarbamol finding decreased from 8.9 nanograms to 1.5 nanograms, a decline of 83 percent. In addition, a third horse’s methocarbamol finding decreased from about 19.0 nanograms to 1.5 nanograms, a decline of approximately 92 percent.
At least two different referee laboratories were involved in analyzing these three methocarbamol findings.
I have requested from the NJRC a listing of all methocarbamol findings from the 2019 Monmouth Park race meet along with the concentrations of the primary and split sample laboratories. I have yet to receive the information requested. I also asked to speak to the NJRC’s Executive Director Judith Nason to inquire about this case. My request was declined.
One exhibit introduced at the stewards’ hearing and read into the record, was an email sent from Dr. Scollay to Mr. Thompson. It reads in part:
“…in my experience as the Kentucky Horse Racing Commission’s Equine Medical Director I saw a very good agreement between concentrations of methocarbamol reported the primary laboratory and those reported by split sample labs. As I recall, all samples 90 days of age and less, so I can comfortably assert that methocarbamol was not unstable or prone to degradation when serum samples were retained under refrigeration for periods up to (at least) 90 days.
“While I am disinclined to speculate on this matter, because I have a limited set of facts, I do believe that the discrepancy between the concentrations reported by the primary and split laboratories raises questions that warrant answers.”
Note: During my tenure as executive director of the IHRC, the IHRC discontinued its relationship with Truesdail Laboratories. (Click here for a link to article.)
Conclusion
In my opinion, the NJRC has a bad rule that allows a trainer to suffer a penalty even after a referee laboratory finds a concentration under the commission’s own regulatory limit. It is important to note that the rule may allow for such an outcome, but it does not require a finding of a violation. So, again, in my opinion, this bad rule was compounded by even worse judgment considering the circumstances in this case.
Simply stated, bad rule + poor judgment = injustice.
The other conclusion is that there is no uniformity in horse racing regulation in the United States.
But, I suspect you already knew that.