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The Week in Review: Tygart, USADA Out to Clean Up the Game

We heard from the United States Anti-Doping Agency (USADA), its CEO Travis Tygart and the Director of Equine Science Dr. Tessa Muir last week when USADA released its anti-doping guidelines, rules and protocols. Once again, we saw that these are no-nonsense, dedicated people with a track record of cleaning up other sports. The release of the guidelines was an important step toward what will be a welcome change for racing–competent, dedicated policing from an outside entity replacing the current system, which just doesn't work.

(Quotes from this story were taken from Tygart and Muir's appearance on the TDN Writers' Room podcast and from Dan Ross's coverage in the TDN and his Q&A with Tygart and Muir.)

With Thursday's release of the details, there was a lot to digest. Here's what resonated with me:

(*) USADA is not going to rely solely on drug testing, which has been proven to be a woefully inadequate way of catching cheaters. There are always a number of potent drugs out there that can't be detected by standard drug tests. USADA may not have all the tools, including wiretaps, that the FBI had when it took down Jason Servis, Jorge Navarro and others, but Tygart made it clear that there are more ways to catch cheaters than just through drug tests.

“Can you bring a case if you don't have a positive test?” Tygart said. “In some states today, I don't think that's even possible under the rules. But if you look at Article Two of the rules, it identifies about 12 different types of violations. Only one or two of those includes a positive test. So possession, trafficking, complicity, attempted administration, retaliation against a whistleblower, those are things that can be anti-doping rule violations.”

He said that scientific evidence will be combined with “buckets of evidence”, much like what you see each week on shows like Law and Order and NCIS.

Tygart said they will also rely on a tip line that is already receiving calls. All of which is a step in the right direction. Neither Navarro nor Servis had any serious violations on their records that were the result of testing, which just goes to show that a lot more beyond testing needs to be done.

(*) USADA appears to understand the importance of going after more than just the trainers. It stands to reason that in most cases where performance-enhancing drugs are used, a veterinarian is involved. And what about the owners? It's hard to imagine they don't know what's going on when their trainer is wining at 30% and 50% off the claim. They should have to pay the price when their trainer is caught.

“When the horse is in training, the owner, the veterinarian, anyone else involved with the horse, they can be held accountable if they're complicit and part of a doping or a medication issue,” Tygart said. “The strict liability of the positive test doesn't apply to them. So there will be a slightly different way that this is prosecuted, but they absolutely can be held accountable under these rules.”

He added: “It's not just the trainer training the horse that has responsibility for this culture of a clean sport. Everybody within the sport should have a responsibility to ensure that it's being done the right way.”

(*) One thing that was not addressed last week was the obvious problem of having a trainer turn the stable over to an assistant once they are suspended. Life goes on largely uninterrupted for that stable with the head trainer getting what amounts to a vacation. There's not nearly enough of a deterrent here. At least with the more serious violations, the stable should be penalized along with a guilty trainer.

(*) USADA is going to rely heavily on out-of-competition testing and trainers must let USADA know at all times where a horse is located. He also said that out-of-competition tests won't be done on a random basis. For obvious reasons, the focus will be on trainers whose results suggest they might be using something to get an edge.

“It's what we call intelligent testing,” Tygart said. “It's not random. Some call it smart testing. Some call it target testing. We will use data.”

(*) You might want to call this one the “Baffert Rule.” While USADA will distinguish between violations that involve performance-enhancing drugs and overages of therapeutic medications, Tygart believes that there is a point where enough is enough when it comes to overages. Four minor infractions or therapeutic overages within five years could result in a sanction of up to two years.

(*) Just because a horse passes post-race urine and blood tests doesn't mean that they can't be caught later on. If someone uses something illegal and a new test for that substance comes around after the fact, they could get nailed. This is another welcome development.

“We will have the ability to do what is called retrospective testing,” Tygart said. “Samples will be put into storage. And then when you develop new tests in the future, we're going to be able to bring those samples out of storage and actually then analyze them with the new methodology for those prohibited old-time substances. That's also a great deterrent to people using things where they say you can't detect it. But in the future, when those technologies and the capabilities are enhanced and changed, then we can go back and you will still be subject to sanction (for a positive test).”

(*) More than six months after the race, the Kentucky Horse Racing Commission has still not acted when it comes to this year's GI Kentucky Derby and the reported betamethasone positive on winner Medina Spirit (Protonico). That, Tygart said, will not happen after USADA takes over.

“I was pretty stunned to hear that (Medina Spirit's) Kentucky Derby case hasn't been resolved yet,” Tygart said. “That's not going to happen on our watch. I mean, it's crazy that it's taken that long to get to a final resolution, particularly when someone is competing the entire time.”

Lawsuits have been filed by horsemen's groups and six states to shoot down the Horseracing Safety and Integrity Act (HISA), which is what created the need for a new method of policing the sport, and USADA has yet to sign a contract with the Horseracing Integrity and Safety Authority. Both factors could mean that the projected start date for HISA, July 1, 2022 will not be met.

But if and when HISA goes into effect, USADA will be ready. Tygart called the new rules a “gold standard program for the industry.” He's got that right. It's time for a new era.

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With Spa Meet in the Balance, NYRA Argues for Upholding Baffert Ban

With a July 12 federal court date looming to decide whether or not Bob Baffert's history of equine drug positives will keep him from entering horses at the upcoming and financially lucrative Saratoga Race Course meet, the New York Racing Association (NYRA) on June 30 filed a memorandum of law that opposes the Hall of Fame trainer's request for an injunction to lift the association's ban against him that has been in effect for the past six weeks.

NYRA told Baffert via letter May 17 that he was temporarily not welcome to stable or race at the association's three tracks (Saratoga, Belmont Park and Aqueduct Racetrack) in the wake of his shifting explanations after Medina Spirit (Protonico) tested positive for betamethasone after winning the GI Kentucky Derby. The initial drug positive was confirmed by split-sample testing at a separate lab approved by the Kentucky Horse Racing Commission.

No ruling has yet been issued over those findings, and NYRA explained to Baffert in that letter that a more precise determination regarding the length and terms of his suspension would be based on information revealed during the course of the ongoing investigation in Kentucky.

On June 14, Baffert filed a civil complaint against NYRA, alleging that the association's ban violates his Fourteenth Amendment constitutional right to due process.

In the June 30 filing in United States District Court (Eastern District of New York), attorneys for NYRA wrote that the association believed it had to act swiftly to bar Baffert, lest his presence jeopardize the integrity and reputation of the GI Belmont S., the third jewel of the Triple Crown and the premier race of the year in New York.

“Plaintiff is a well-known Thoroughbred trainer, whose horses have won numerous significant races,” the filing stated. “But, over the course of Plaintiff's career, his horses have been cited for drug-related violations at least 30 times. In fact, over the 12 months preceding this year's Kentucky Derby, Plaintiff has been fined four times for drug-related violations.”

Medina Spirit at Churchill Downs | Coady photo

Two of those violations were for lidocaine, one was for dextrorphan, and another, like in Medina Spirit, also for betamethasone. Three of Baffert's five most recent drug positives came in Grade I stakes—the Arkansas Derby and Kentucky Oaks in 2020, plus the 2021 Kentucky Derby. The two findings at marquee events at Churchill Downs led the gaming corporation that owns the track to bar Baffert from the entire family of Churchill-affiliated tracks for a period of two years.

The NYRA filing continued: “Although Plaintiff did not then have any horses entered in races or stabled at [NYRA tracks], it was likely, if not certain, that Plaintiff would attempt to enter Medina Spirit in the Belmont scheduled for June 5, 2021.

“Given Plaintiff's history of drug-related violations, Medina Spirit's positive test, Plaintiff's contradictory statements, Plaintiff's [then-temporary] suspension from Churchill Downs, and the fact that the Belmont was fast approaching, NYRA took the only sensible action under the circumstances—it temporarily suspended Plaintiff from entering and stabling horses at its Racetracks.”

The filing also pointed out that the May 17 letter had advised Baffert that if he wished to present to NYRA any information or arguments that might make the association reconsider its ban, he had seven business days in which to do so.

Yet according to NYRA, “Plaintiff never availed himself of this opportunity to be heard or raise any objection with NYRA. Instead, nearly a month after NYRA imposed the temporary suspension, Plaintiff commenced this action…and now moves for a preliminary injunction.”

The NYRA filing outlined three chief legal reasons against granting Baffert the court ruling he seeks to resume racing at NYRA tracks:

“First, Plaintiff fails to demonstrate that he will suffer irreparable injury in the absence of emergency relief. Rather than allege any actual or imminent injury or irreparable harm warranting a preliminary injunction, Plaintiff offers only conclusory assertions of potential harm, speculates that he may lose unidentified clients of the suspension is not lifted, and fails to submit any evidence demonstrating that the speculative loss of clients would substantially damage his business.

“Even if the Court were to consider Plaintiff's potential client loss, such an injury could be remedied through money damages, rendering preliminary injunctive relief inappropriate. Furthermore, Plaintiff's nearly month-long delay in seeking this preliminary injunction undercuts the sense of urgency needed to remedy his alleged harm.

“Second, Plaintiff fails to establish that he is likely to succeed on the merits of his claims. Contrary to Plaintiff's unsupported assertion that NYRA could not temporarily suspend Plaintiff from its Racetracks because it does not own the grounds on which they are located, settled law holds that NYRA had both the common law and regulatory right to exclude anyone, including a licensed trainer, who engages in conduct detrimental to the best interests of racing.

“Moreover, Plaintiff's assertion that NYRA violated his due process rights is incorrect. NYRA was not required to provide Plaintiff an opportunity to be heard before issuing a temporary suspension because NYRA's decision was based on probable cause that Plaintiff's actions warranted suspension and was necessary to protect the safety of the racehorses and their riders…. Plaintiff also fails to allege facts sufficient to show that he is likely to prove that NYRA's temporary suspension of Plaintiff was 'state action'—as required to implicate due process concerns.

“Third, the public interest and balance of equities weigh clearly in favor of NYRA. NYRA is obligated to protect its investment, brand and reputation, and supervise activities at its Racetracks in a manner that fosters the public's confidence in the safety and honesty of the sport.

“Plaintiff's speculative assertions that his business might suffer or that his temporary suspension could last for a significant period of time cannot override NYRA's compelling interests in upholding the integrity of horse racing…. Accordingly, Plaintiff's motion for a preliminary injunction should be denied.”

Craig Robertson, an attorney representing Baffert in this case, did not reply to an emailed request for comment on Wednesday.

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Feds Slam Alleged Dopers’ Assertion That HISA Creates Loophole

Prosecutors in the racehorse doping conspiracy case that ensnared 29 racetrackers, veterinarians and pharmaceutical brokers one year ago tried to convince a federal judge Friday that recent motions made by some of the defendants to dismiss drug alteration and misbranding charges are “without merit” and represent “an effort to invent a statutory limitation where none exists.”

The government's memorandum of law filed Mar. 5 in United States District Court (Southern District of New York) addresses a number of alleged legal flaws in the defendants' motions to dismiss, including several that prosecutors state would be more appropriately argued when the case goes to trial, not before it.

The defendants' motions, prosecutors allege, “do not actually seek the dismissal of the Indictment, but are more accurately described as premature motions regarding the sufficiency of the Government's evidence to be presented at trial…. The Second Circuit makes clear that a challenge to whether a statutory element has been satisfied is a matter for trial.”

The government's filing continues: “Defendants Seth Fishman, Lisa Giannelli, Jordan Fishman, Rick Dane, Jr., Christopher Oakes, Jorge Navarro, and Erica Garcia each ask that this Court insert novel, unsupported, and self-serving language into the text of [federal drug laws] in an effort to avoid felony liability for their illegal misbranding conspiracies.” The memo notes that a dismissal motion filed by defendant Michael Tannuzzo on different grounds should also not be granted.

The filing takes aim at the defendants' creative assertion that government prosecutors are overstepping their legal boundary by bringing charges under the applicable federal statute–the Food Drug and Cosmetic Act (FDCA)–when instead, the defendants argue, the case should instead fall under the authority of the Federal Trade Commission (FTC).

Back on Feb. 5, the defendants made the somewhat surprising legal argument that the Horseracing Integrity and Safety Act of 2020 (HISA)–which was signed into law a full nine months after the arrests were made–allegedly gives “plenary authority,” or absolute regulatory power, to the FTC in all federal matters pertaining to horse racing.

The government's Mar. 5 filing laced into that assertion: “The defendants' respective discussions of the passage of what is commonly referred to as [HISA] in the Fishman Motion and the Oakes Motion shed no light on the purpose or application of the FDCA. That is because the 116th Congress's passage of the HISA in 2020 has no bearing upon the intent of the 75th Congress's passage of the FDCA in 1938, and no implication for the plain language of the FDCA's provisions criminalizing misbranding and adulteration of animal drugs.

“As an initial matter, the Supreme Court disfavors reliance on subsequent legislative history in assessing the language and meaning of prior statutes,” the government's filing continues. “In particular, while 'subsequent legislation can of course alter the meaning of an existing law for the future' and 'can even alter the past operation of an existing law' (constitutional objections aside) if it makes that retroactive operation clear…it cannot inferentially amend the purpose behind passage of a prior statute, as defendants wish.

“The dangers of such post-hoc analysis are plain here. Congress did not–in either the FDCA or the HISA–indicate its intent either to acknowledge or create a 'racehorse industry' exception to the criminal prohibition against the distribution of adulterated and misbranded drugs with the intent to defraud or mislead in the FDCA, nor did it so indicate with respect to any other federal criminal law.

“The defendants' arguments in this respect reflect what seems to be a purposeful misreading of both the HISA and the charges against them: the defendants are not charged with violating state racing anti-doping rules and regulations, for which no federal analogue existed prior to the passage of the HISA; they are charged with felony misbranding and adulteration of drugs in interstate commerce in violation of the FDCA. No interpretative gymnastics are required to 'make sense' of one statute in light of the other.”

The government's filing sums up: “The HISA contains no criminal penalties because Congress determined sufficient criminal penalties were already provided for in existing federal criminal laws, laws which the HISA expressly does not modify. Ultimately, though, no reading of the Congressional tea leaves is required. There is no contradiction between the FDCA and the HISA, and no retrospective ambiguity in the text of the former arises from the text of the latter.”

Other counts of the government's case against the alleged dopers are not affected by this recent series of motion to dismiss, and trials are expected to begin in the second half of 2021. But one defendant, Scott Robinson, who has already pleaded guilty to conspiring to unlawfully distribute adulterated and misbranded drugs for the purpose of doping racehorses, has a sentencing hearing scheduled Mar. 9.

The multi-state simultaneous sting netted the high-profile arrests of trainers Navarro and the 2019 GI Kentucky Derby-disqualified trainer Jason Servis, plus a vast network of co-conspirators who allegedly manufactured, mislabeled, rebranded, distributed and administered PEDs to racehorses all across America and in international races.

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Two Defendants in Federal Indictment Plead Guilty to Doping Charges

Scott Robinson and Sarah Izhaki each pled guilty today to conspiring to unlawfully distribute adulterated and misbranded drugs for the purpose of doping racehorses. Robinson pled guilty before U.S. District Judge J. Paul Oetken, and will be sentenced by Judge Oetken Jan. 15, 2021. Izhaki pled guilty before U.S. District Judge Mary Kay Vyskocil, and will be sentenced by Judge Vyskocil Dec. 2, 2020. The guilty pleas are the first major domino to fall from the bombshell FBI indictments that the U.S. Attorney’s Office for the Southern District of New York dropped in March, which included charges against high-profile trainers Jason Servis and Jorge Navarro.

“Scott Robinson and Sarah Izhaki represent the supply side of a market of greed that continues to endanger racehorses through the sale of performance-enhancing drugs,” said Audrey Strauss, the Acting United States Attorney for the Southern District of New York. “Each of these defendants provided the raw materials for fraud and animal abuse through the sale of unregulated and dangerous substances: Robinson’s products were manufactured in shoddy facilities with no professional oversight of their composition; Izhaki’s products were smuggled into the country and sold from cars in supermarket parking lots. These convictions show that our office and our partners at the FBI are committed to the prosecution and investigation of corruption, fraud, and endangerment in the horse racing industry.”

According to the Indictments, from at least in or about 2011 through at least in or about March, 2020, Robinson conspired with others to manufacture, sell, and ship millions of dollars’ worth of adulterated and misbranded equine drugs, including performance-enhancing drugs intended to be administered to racehorses for the purpose of improving those horses’ race performance in order to win races and obtain prize money. Robinson sold these drugs through several direct-to-consumer websites designed to appeal to racehorse trainers and owners, including, among others, “horseprerace.com.”

Robinson contributed to the conspiracy by, among other things, sourcing chemicals used to create custom PEDs that were advertised and sold; falsely labeling, packaging, and shipping those PEDs to customers across the country, including in the Southern District of New York; and collecting, reporting, and responding to employee and customer complaints regarding the misbranded and adulterated products advertised and sold online. Among the drugs advertised and sold during the course of the conspiracy were “blood builders,” which are used by racehorse trainers and others to increase red blood cell counts and/or the oxygenation of muscle tissue of a racehorse in order to stimulate the horse’s endurance, which enhances that horse’s performance in, and recovery from, a race, as well as customized analgesics which are used by racehorse trainers and others to deaden a horse’s nerves and block pain in order to improve a horse’s race performance. The drugs distributed through the defendants’ websites were manufactured in non-FDA registered facilities and carried significant risks to the animals affected through the administration of those illicit PEDs.

For example, in 2016, Robinson received a complaint regarding the effect of his unregulated drugs on a customer’s horse: “starting bout 8 hours after I give the injection and for about 36 hours afterwards both my horses act like they are heavily sedated, can barely walk. Could I have a bad bottle of medicine, I’m afraid to give it anymore since this has happened three times.” Commenting on this complaint, Robinson wrote simply, “here is another one.”

In a separate conspiracy, from at least in or about February, 2018, through at least in or about November, 2019, Izhaki conspired with others to transport, sell, and deliver, tens of thousands of dollars of erythropoietin, a “blood builder” drug intended to increase a horse’s racing performance, which had been smuggled into the country from Mexico. This drug was covertly transported into the U.S. and sold by Izhaki, who believed it would be used by racehorse trainers to illicitly improve their horses’ race performance. Izhaki also offered for sale amphetamines, and a substance that Izhaki referred to as “the Devil,” which Izhaki claimed would mask the presence of potent drugs in a human or animal’s body.

The defendants are among 27 individuals charged in a series of Indictments arising from an investigation of a widespread scheme by racehorse trainers, veterinarians, PED distributors, and others to manufacture, distribute, and receive adulterated and misbranded PEDs and to secretly administer those PEDs to racehorses competing at all levels of professional horseracing. By evading PED prohibitions and deceiving regulators and horse racing officials, participants in these schemes sought to improve race performance and obtain prize money from racetracks, all to the detriment and risk of the health and well-being of the racehorses.

Robinson, 46, of Tampa, Fl., and Izhaki, 45, of Manalapan, N.J, each pled guilty to one count of conspiring to unlawfully introduce and receive with the intent to redistribute for pay or otherwise adulterated and misbranded drugs in interstate commerce, and to misbrand drugs in interstate commerce. This offense carries a maximum sentence of five years in prison. Any sentencing of the defendants will be determined by the judge.

Strauss praised the outstanding investigative work of the FBI New York Office’s Eurasian Organized Crime Task Force and its support of the Bureau’s Integrity in Sports and Gaming Initiative. Strauss also thanked the New Jersey Attorney General’s Office, the New York State Police, and the New York City Police Department for their support of this investigation, and the Food and Drug Administration and Drug Enforcement Administration for their assistance and expertise.

This case is being handled by the Office’s Money Laundering and Transnational Criminal Enterprises Unit. Assistant United States Attorneys Sarah Mortazavi, Benet J. Kearney, and Andrew C. Adams are in charge of the prosecution.

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