Community Meeting To Discuss Maryland’s Stricter Corticosteroid Regulation Set For Sept. 28

Maryland racing stakeholders and regulators have scheduled an online community forum to discuss and answer questions regarding the action by the Maryland Racing Commission to remove testing threshold levels for five corticosteroids.

The Zoom webinar meeting will be held on Tuesday, Sept. 28 at Noon eastern.

Participants include MRC Executive Director Mike Hopkins; MRC member Dr. Thomas Bowman, who chairs the commission's Equine Safety, Health and Welfare Advisory Committee; Dr. Dionne Benson, Chief Veterinary Officer for 1/ST RACING (The Stronach Group); Dr. Mary Scollay, Executive Director of the Racing Medication and Testing Consortium and Alan Foreman, Maryland Thoroughbred Horsemen's Association general counsel and Chief Executive Officer of the THA.

The MRC, upon the recommendation of the advisory committee chaired by Bowman, approved a motion to modify a regulation on the five corticosteroids to eliminate testing threshold levels and employ limit of detection—the lowest level at which a laboratory can, with confidence, detect a substance in a sample.

The change will be filed with emergency status and there will be a public comment period. It is anticipated the updated regulation will be implemented Nov. 1, Hopkins said.

The five corticosteroids are dexamethasone, prednisolone, betamethasone, isoflupredone and triamcinolone. The current 14-day stand-down period for intra-articular injections will remain in place under 2019 model rules approved by the Association of Racing Commissioners International and RMTC.

The advisory committee discussed the proposal at a Sept. 8 meeting as a result of several dexamethasone positives and reports the corticosteroid was being regularly administered by some veterinarians at 48 hours before a race at a lower dose rather than the RMTC-recommended 72-hour withdrawal time at the regular dose.

The webinar is open to all Maryland horsemen and practicing veterinarians. Advance registration is required to join by clicking here.

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When It Comes To HISA, Much Of What We Know Is How Much We Don’t Know

At this point, the feasibility of the July 2022 deadline for implementation of the Horseracing Integrity and Safety Act is a matter of conjecture. According to panelists and audience members at the Racing and Gaming Conference at Saratoga Aug. 16, there's a wide range of opinions on whether the legislation (which was signed into law at the end of 2020) is a good idea, where its greatest legal and logistical challenges may lie, and whether it will make its deadline.

First, it's helpful to understand the basic definitions in the law, according to Pat Cummings, executive director of the Thoroughbred Idea Foundation. The law will apply to “covered horses,” “covered races,” and “covered persons.” Covered horses are any Thoroughbred from the time they post their first timed workout until the authority receives official notice of their retirement from racing. Covered races are those with parimutuel wagering, which means fair circuit races and steeplechase races are not automatically included. Covered persons, Cummings pointed out, includes the usual positions already licensed by state racing commissions like trainers, owners, jockeys, etc., but also includes breeders.

Cummings pointed out that currently, breeders are not licensed by state racing commissions, though in some states they may face action from their state breed organizations if they violate certain rules as members. This creates some confusion, since the federal law also places restrictions on use of bisphosphonates, which many in the industry say have been used on sales yearlings in an attempt to improve the appearance of pre-sale radiographs.

“Some of us argue that you're still leaving breeders out by conferring jurisdiction when a horse has its first workout, which means you're leaving a gap from the time the horse is born,” said panelist Alan Foreman, chairman and CEO of the Thoroughbred Horsemen's Association. “The response is that there's language about unfair and deceptive trade practices [which would apply].”

How widely that language or what may constitute “unfair and deceptive trade practices” could be applied is anyone's guess at this stage.

One of the biggest concerns shared by many industry onlookers is what the new organization will cost, and who will pay for it. Cummings said horseplayers largely assume the bill will fall to them.

“I think the bettors would suggest they are already paying for it, based on takeout,” Cummings said. “There is a fear amongst bettors that increasing takeout will come as a means to pay for these programs.”

Racing commissions don't know what they would be charged to outsource pre- and post-race drug testing to a new authority, and some in states with smaller racing industries have expressed concerns that an increase in testing costs would bankrupt them. Ed Martin, president and CEO of the Association of Racing Commissioners International, was in the audience and noted that most state racing commissions he has spoken with are looking forward to the change and believe it will make regulation more cost-efficient for them, with a few exceptions.

Attorney Pete Sacopulos also wonders whether legal costs for smaller training operations will rise. Sacopulos laid out his interpretation of the way drug positive cases could be adjudicated under HISA. The current process (which varies somewhat by state) sees the stewards issue a ruling when they determine there has been a violation of racing rules. If the licensee appeals that decision, the case may go to an administrative law judge and/or the racing commission, on to the state judicial review process, on up to the U.S. Supreme Court.

Sacopulos' understanding of the federal law however, results in fewer choices for a trainer looking to appeal a finding. He believes HISA would hear a case, though it's unclear whether this would be done by a subcommittee or the overall board. This could be appealed, but it would be appealed most likely to office of administrative law judge housed under the Federal Trade Commission banner, since HISA falls under the FTC's purview. This would limit the pool of judges available to hear the case and therefore, restrict a defendant's choice if they wanted to request a different judge than the one assigned. Sacopulos also believes the administrative law judge would hold another hearing, including witnesses and a review of evidence, rather than reading through existing transcripts and motions from the original hearing the way state courts do now. He also said HISA doesn't seem to allow for mediation in such a case, which state and federal courts do.

If a trainer wants to continue appealing, Sacopulos said they would be requesting the FTC hear the case, which the organization could decline.

“You're not guaranteed a hearing from the FTC, let's be clear about that,” said Sacopulos, who said if the FTC chose not to hear a case, it would go straight to the U.S. Court of Appeals at the cost of $30,000 to $50,000 to the defendant. “How does a person with a minor overage operate in this system?

“They don't.”

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Foreman said he didn't agree with Sacopulos' interpretation of the process, but said both of them were speculating at this stage. He also pointed out that the vast majority of minor overages are for therapeutic substances and aren't appealed under the current system. Under USADA's regulation of human sport, Foreman also said “only a very small number of violations” are ever appealed past the USADA level, so it's not likely these limitations would meaningfully impact defendants, even if Sacopulos' interpretation is correct.

It all may be moot anyway, according to attorney Chris Kannady, state representative in Oklahoma. Oklahoma's racing commission is one of several bringing suit against the new authority, questioning whether it's legal to designate regulatory power to a private entity in the way HISA does.

Prominent attorney Bennett Liebman, government lawyer in residence at the Albany Law School, agreed that the U.S. Supreme Court has not made a ruling about this kind of delegation since 1936 and would likely be eager to review it, should that case come before them.

“It is probably unlikely that this will go into fruition in July 2022 as predicted,” said Kannady. “I just don't believe, given the circumstances legally and politically, that it will.”

Kannady predicted that state legislators in conservative states would likely not agree to delegate authority to any kind of federal authority. In Oklahoma, Kannady believes the bill would need support from at least 76 out of 101 state representatives. Eighty-two of the state representatives in the legislature are Republican, and Kannady doubts the increased costs that will come with HISA will be looked upon kindly by them.

Whatever problems there may be with the new law, some panelists expressed hope that the new authority could bring the sport back from what many see as the brink of disaster.

“We have not moved as society has moved in many respects,” said Foreman. “The public simply doesn't accept the way we do business … we have not been the same since 30 horses died on the racetrack at Santa Anita, because we couldn't explain it.

“This is a perfect storm. That's why this is happening.”

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Spirited Debate On HISA Highlights Saratoga Conference

SARATOGA SPRINGS, NY-To hear some, the Horse Racing Integrity and Safety Act (HISA) is badly needed legislation that will right the ship for an industry that has gone badly off course when it comes to issues of horse safety, integrity and illegal drugs. To others, it is another example of big government wading into a sport where it doesn't belong, which will ultimately cause horse racing a lot more problems than it solves.

There was little middle ground Monday as the HISA issue dominated day one of the Racing and Gaming Conference at Saratoga, which featured more than a dozen panelists tackling a number of subjects ranging from HISA to the threat of decoupling to how pari-mutuel wagering will be affected by the advent of sports betting.

The HISA debate began with a panel that included Alan Foreman, the chairman and CEO of the Thoroughbred Horsemen's Association, and Patrick Cummings, the executive director of the Thoroughbred Idea Foundation. Both spoke of a broken industry plagued by scandal and in need of reform.

“We lost the narrative,” Foreman said. “The public no longer accepted that we were doing right by our horses. We had the breakdowns at Santa Anita and then the Servis and Navarro indictments and then the betamethasone issue in the Derby. The hits kept coming. We simply can't overcome the notion that we aren't doing right by our horses, whether it's safety and welfare or medication. You have the Washington Post and the New York Times questioning why the sport is allowed to continue to operate. We have a responsibility to fix this and we've seen that we can't do it voluntarily. (HISA) is a once-in-a lifetime opportunity to fix this problem and change the narrative and to save a majestic place like Saratoga and all our other venues around the country. HISA is not perfect. But you can't let the perfect get in the way of the good.”

The counter-argument was provided by Chris Kannady, an attorney who represents the Thoroughbred Racing Association of Oklahoma, which is among a number of organizations seeking to shoot down HISA in the courts based on the argument that it is unconstitutional. With Russell Williams, the president and CEO of the United States Trotting Association, missing the conference because of travel problems, Kannady was the only panelist left for a group talk related to the legal challenges to HISA, but he had no problem getting his side's point across. Kannady brought forth a number of objections, among them how HISA, because of how it may be funded, will be a much bigger problem for horsemen racing at lesser tracks versus their counterparts in New York, Kentucky, Florida and California. It is believed that HISA will be funded by a per-start fee that must be paid any time an owner runs a horse.

“We need to have a heathy debate as to what this is going to do to the industry, and when I say industry I mean everybody, every single person,” said Kannady, who is also a member of the Oklahoma House of Representatives. “Going down to the lowest level, what is involved and what is the cost to each individual person that is involved in the process? When it comes down to finding the funding, they say we will find a way. What that way is is to go to the tip of the spear, the people involved in the racing industry and tax them in order to fund this process. What that's going to do is decimate the industry, especially in some of the smaller states, like Nebraska, Louisiana, Oklahoma and West Virginia.”

Kannady concluded with a warning: “This is about us as individuals taking control of the situation and making sure our industry isn't wrecked.”

NYRA CEO and President David O'Rourke had a different take.

“Our moral obligation is to protect the horse,” he said in response to Kannady. “What tools do we have at our disposal for that? Throughout my career, this has been one of the more frustrating aspects of this job. To protect the horse, that is the intention of this bill. I don't think it is political. It's more a matter of what are we doing to protect these athletes on a national basis. Whether this is constitutional or not, we have to consider what business we are in, what we are trying to do and what is the public perception of our sport? It's as simple as that. If you want to burn down the house and fight this for the next 10 years, remember that we are all here to protect the animal. If we can't do that, we should not be in this business.”

HISA is set to be implemented July 1, 2022, which Kannady said is unlikely to happen. He wasn't alone.  Moderator Bennett Liebman brought up several hurdles HISA must clear before it can become a reality. He noted that, when it comes to HISA, there are many details yet to be worked out, which won't happen overnight.

“The problems with this bill are absolutely enormous,” he said. “It's going to take an incredible amount of work by the Authority to make this work, that's if it survives the court challenges. It is absolutely daunting.”

Liebman brought up the possibility that HISA's constitutionality may ultimately be decided by the Supreme Court.

Focusing on the legal challenges, Kannady painted a picture where, even if the pro-HISA side prevails in court, it may take years for the bill to go into effect.

“I don't know how long it might take,” he said. “But we do know how slow the court process is, especially with how COVID got the courts backed up. We are less than a year out from implementation and have multiple jurisdictions involved with legal challenges. We're just at the district-level process. If it goes through the appellate process, and it could even go the Supreme Court, that would mean this could take years.”

O'Rourke opened the conference, celebrating the return of fans to Saratoga and going over some of the issues NYRA will face in the coming years. He addressed sports betting, which he believes NYRA can benefit from if it can incorporate its product with websites taking bets on the major sports.

“With sports betting, you literally have every other sport on these platforms,” he said. “Putting racing side by side with that would be a winning combination. It opens up our customer base, 10x, 20x. It's an incredible opportunity and we look forward to that. We believe pari-mutuels and fixed odds can exist side by side.”

On the subject of the future of the two downstate tracks, O'Rourke said changes are in order.

“Ultimately, one would argue that with two tracks that are eight miles apart, consolidating to one facility is a logical economic approach,” he said.

O'Rourke added that Belmont would have to be winterized should it become the only remaining track in the New York City area. If NYRA decides to go in that direction, he said the possibility exists that Belmont could be torn down and rebuilt.

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Saratoga’s Racing and Gaming Conference Set to Return

After a two-year absence, the Racing and Gaming Conference is back. The two-day conference will kick off Aug. 16 and will be held in the 1863 Club on the grounds of Saratoga Race Course.

With the goal of examining industry trends and challenges facing the sport, the conference was known for bringing together notable industry leaders from across a wide spectrum, including racing officials, regulators and politicians. This year, more than 40 gaming and racing industry professionals will participate in 14 sessions as speakers and panelists throughout the two days.

The conference will begin with a panel called “Putting on the Big Show, What's New and What's Next at NYRA,” which will feature David O'Rourke, the chief executive officer and president of the New York Racing Association. That will be followed by a session entitled “Horseracing Integrity and Safety Act: What is in it and Why is it important to the Industry?” It will be moderated by Bennett Liebman, Government Lawyer in Residence at Albany Law School, and the panelists will be Alan Foreman, Pat Cummings and Pete Sacopulos. Monday's agenda also includes what should be an important look at the “decoupling” problem. Decoupling is an effort by casino companies to keep their gaming licenses without having to conduct live racing.

On the 16th, Bill Pascrell III, Partner, Princeton Public Affairs Group, will host a panel called “Parimutuel Wagering in the New Sports Betting Landscape.” Panelists will include Dennis Drazin, who heads the management team at Monmouth Park and played an integral role in the fight to overturn The Professional and Amateur Sports Protection Act.

Patrick Brown, co-founder of the Brown & Weinraub law firm in Albany and who serves as a member of the Albany Law School, Government Law Center Advisory Board, will serve as conference director after having been a conference participant for many years. Brown has worked extensively with Leibman, who ran the conference while it was under the direction of the Albany Law School.

To learn more about the conference got to https://racingandgamingsaratoga.com.

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