California Horse Racing Board To Expand Posting Of Alleged Medication Violations

The California Horse Racing Board has expanded the posting of complaints on its website for alleged medication violations to include Class 4 and Class 5 violations.

The CHRB has been posting complaints for the more serious Class 1, 2, and 3 violations, which require disqualifications and forfeiture of purses. However, with the increased emphasis on all medication violations in horse racing, the CHRB has elected to add Class 4 and Class 5 complaints as well. The complaints stem from all drug testing, including alleged violations during racing, training, and from out-of-competition testing.

To view complaints filed by the CHRB, go to the website (www.chrb.ca.gov) and click on the tab for Administrative Actions, then select Complaints from the drop-down menu.

Be aware that complaints are filed for alleged violations prior to hearing. The cases have not been adjudicated at the time they are posted.

Pursuant to a new statute, potential medication violations will be posted on the CHRB website beginning January 1, 2021, with the identification of all drug positives once the split sample is confirmed or even earlier if the licensee declines to request split-sample testing. Those positives will be posted before any complaints are issued.

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Delaware Thoroughbred Racing Commission Comes Out Against HISA

Citing lack of financial information outlined in its framework, the Delaware Thoroughbred Racing Commission (DTRC) unanimously voted Oct. 14 to oppose U.S. Senate Bill 4547, the Horseracing Integrity and Safety Act. The U.S. House of Representatives passed its version (HR 1754) Sept. 29 by a voice vote. The Delaware Harness Racing Commission (DHRC) has also come out in opposition of the pending legislation, claiming the bill is an “unnecessary burden that could be potentially harmful to the entire horseracing industry.”

According to a release, the DTHC claims that unknown costs will be “detrimental” to an industry where profit margins are slim to begin with and that the addition of an extra layer of governmental oversight will fuel an increase in costs.

The DTHC also says in its release that they believe that the governing body established by HISA would not necessarily include individuals with experience in Thoroughbred racing and the control of the drugs used in the business.

The DTHC points out that while they find the standardization of rules pertaining to drug use included in the new legislation to be “laudable,” they already follow the guidelines and standard testing rules of the Association of Racing Commissioners International (ARCI), rules that are adhered to by U.S. racing jurisdictions that account for 90% of the handle in the country.

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It’s Time For USTA To Support The Horseracing Integrity And Safety Act

We've reached a critical stage in the debate over pending federal legislation that would bring sweeping and needed change to the way horse racing operates in America. The current bill, now called the Horseracing Integrity and Safety Act, is supported by hundreds of legislators, horse owners and breeders across the country, the Humane Society, and countless other people across all breeds who believe that only national oversight can begin to fix what's broken in our sport and provide the political and legal cover needed to sustain racing in the future.

One of the loudest voices in opposition to the federal legislation is the United States Trotting Association, led by its president, Russell Williams, who has been crusading for years in opposition to proposed federal reforms. He seems to believe that the bill poses an existential threat to harness racing. He seems to believe that state racing commissions are worth fixing. He seems to believe that harness racing has been shunned through the process by which the legislation has evolved. And Williams is not alone. Other members of the harness racing family seem to have swallowed what Williams is serving and also loudly oppose the legislation.

To them, I say this: don't follow the USTA and Williams over the cliff. There is too much at stake. The existential threat to harness racing is not this legislation. It is not the arrival of federal regulatory power or tweaks to Lasix rules. The existential threat to harness racing instead is the USTA's opposition to this legislation. It makes harness racing a laughing stock in the broader world of racing, gives the legislators we are begging for purse subsidies a reason to deny them, and animal rights activists new causes of action to imperil racing. I believe Williams is sincere. I also believe he is dead wrong. You can be both.

And to the broader world of horse racing, and especially to lawmakers in Washington and state houses across the country, I say this: The USTA doesn't speak for all in harness racing. There are many industry leaders – owners and breeders and trainers and drivers and administrators – who see this imperfect legislation as a timely opportunity to send a message to legislators and the public that harness racing recognizes its integrity and safety problems and is willing to do something bold to solve them. Their voices deserve to be heard, too, as this debate moves toward a conclusion. I hope people of goodwill are listening. You'll be hearing more from us in the coming days.

I think Williams and the USTA are wrong on the merits of the bill but at least I understand the specific arguments they are making against it. What I don't understand is the USTA's refusal  to work with other industry stakeholders to improve the legislation now likely to pass. The USTA's decision to act as an outlier, no matter how principled Williams thinks it is, is a catastrophic mistake that exposes harness racing, and it alone, to punishment by legislators and activists. The USTA looks at the legislation only as opposing counsel would. But there was never an industry-wide discussion, or vote, on whether that's what the rest of us want.

Here's an example of what I mean. The current version of the legislation, introduced a few weeks ago in the Senate, includes several meaningful concessions (on Lasix, for example)  that ought to have made the bill more palatable to the USTA. It didn't. Williams last week offered the same old, tired objections to the new and improved bill. Invited to compromise, to work to make the legislation better, Williams instead doubled-down. Faced with the same choice, on the other hand, what did the Jockey Club do? It wanted a full ban on Lasix, right? It didn't get that. Yet It accepted a much more limited ban. It's at the table, negotiating, while the USTA is threatening a costly lawsuit. Whose members are best being served?

Let's take some of Williams' points one by one. He says that state racing commissions are “accountable” to elected officials and that the new legislation would create a federal regulatory system, through the Federal Trade Commission, that would be “passive and symbolic at most.” Great talking points – sure to resonate with horsemen skeptical of federal power. But the opposite is true. Surely if you have read this far you know from your own experience that the lack of accountability and diligence among racing commissions is one of the major reasons why racing integrity is such a problem in our sport.

Pick a state, any state with horse racing, and you can argue the regulatory scheme there is broken by perennial cronyism and a level of bureaucratic inertia and incompetence that would be shocking if it weren't so ordinary. That's why there is still so much cheating and so little done to stop it. Does anyone deny that? When Williams says that racing commission members are basing their decisions on their “immense learning and experience” he's asking us all to stop believing what we are seeing with our own eyes and hearing with our own ears. And he's leading the industry toward a path where it will become a club sport.

Does anyone think that the USTA has some sort of magic plan to fix what horse racing has failed to fix in racing commissions for half a century? If so, I haven't seen it. Look at New York, for example. Where is the “immense learning and expertise” among state regulators there? The FTC, meanwhile, which Williams calls “passive and symbolic,” has been around for more than 100 years and regularly presses to enforce criminal and civil penalties. What's “'passive and symbolic” are the failed racing commissions the USTA inexplicably wants to rescue.

Williams complains that the bill “makes a couple of head fakes in the direction of breed-specific rules, but it lacks the mandatory language necessary to make sure the Authority makes such rules where appropriate.” Here's what the bill now actually says: “Consideration of other breeds. — In developing the horseracing anti-doping and medication control program with respect to a breed of horse that is made subject to this Act by election of a State racing commission or the breed governing organization for such horse under section 5(k), the Authority shall consider the unique characteristics of such breed.” (Emphasis added).

Conjuring up old grudges with the RMTC, which only he cares about, Williams next says that those who support the new rules on Lasix now in the legislation are buying into a “hoax” cobbled together by our friends in the Thoroughbred industry. But successful Lasix-free racing in the rest of the world is no hoax. Nor is it universally agreed that Lasix is not a “performance enhancing” drug or that it doesn't mask blood doping. Nor is it a “public distraction,” as Williams says. There are plenty of reasonable people who believe that administering a diuretic to a horse before the race itself raises concerns about animal cruelty.

Under the new version of the bill, in one of its most significant recent compromises in the USTA's favor, states could request a three-year delay in prohibiting Lasix within 48 hours of a race except on 2-year-olds and in stakes races. That three-year period would be used to further study the effect of Lasix on horses and, perhaps, to put to rest the contentious medical and scientific debate on the topic. The federal authority created by the new law would then have the opportunity to modify the 48-hour Lasix rule. Does that sound unreasonable to you? Enough to spend millions litigating over?

Williams complains about the funding mechanism in the bill, arguing that the harness industry will be disproportionately and unfairly taxed compared with our Thoroughbred cousins. He keeps harping on a figure he has made up – $13 million, by multiplying a fee of $45 for every race – and suggesting that this will be the annual testing cost to harness racing for the rest of time. But there is nothing in the text of the law that mandates this disparity or that cost. And certainly nothing that guarantees the Thoroughbred industry will benefit to our detriment.

My sense instead, from talking to many people involved in this debate, is that there are discussions to use a sort of scale that would distribute drug testing costs more equally across breeds in the new legislation. Why the USTA is not involved in these discussions, or no longer involved, is a question the association ought to answer before it resumes its propaganda offensive against the Integrity Act. It's certainly a question the USTA ought to answer for itself before it commits millions to lawyers to try to overturn a well-meant law.

On the topic of fees, by the way, in the last 15 years I have yet to meet another owner who has said that he or she wouldn't be willing to spend a little more to try to make the sport more fair. Owners, like everyone else in the industry, need to put their money where their mouths are for the greater good. Here's an idea. Instead of spending $425,000 on lawyers to prepare for an attack on the constitutionality of the proposed law (which the association did in April even as it was cutting salaries) the USTA could have instead, for starters, created a fund to help defray the costs of the drug testing under the federal regime.

Williams next argues that USADA's program is not set up to perform the broad drug testing the new law would require. But there is nothing in the new bill that limits the ability of the federal drug testers to contract with other labs across the country, providing they are accredited, to perform the necessary testing. And then Williams complains again about the USTA losing its voice in a process that will directly impact harness racing. He's complaining here about a problem he himself has created. Our voices would be heard if not for the USTA.

The USTA has been invited to have a voice in this legislation, which now includes a provision that makes it clear that the authority established by the law won't be dominated by the leaders of any one breed. Standardbreds aren't specifically included in the bill now because of the USTA's relentless opposition to it. Fortunately, however, there is an opt-in provision in the law that makes it easy for the USTA to join the coalition of racing entities willing to work within the framework of the legislation once it is passed. The door is open, in other words.

Having chosen to oppose the bill, Williams now laments the fact that harness racing won't be able to control its own destiny if it passes. While the USTA prepares for litigation, meanwhile, I am told that members of the Quarter Horse racing community already have met, or will meet, to coordinate how they plan to “opt in” to the law. They surely aren't thrilled with everything in the law. They, like the harness industry, are not explicitly included in the current bill. Yet they are coming to the table, working within the framework of the bill, which by the way will only further isolate the USTA and make harness racing a rich political and economic target.

Take New Jersey, for example, Representatives of the harness industry are now lobbying legislators to restore millions of dollars in crucial funding that helps fuel racing's economic engine in the Garden State. It is a particularly tough sell these days with the state's budget overwhelmed by the coronavirus. The USTA's choice to oppose the new Integrity Act, and to prepare to litigate over it, gives an easy out to any state legislator who is on the fence about voting to help harness racing: “Oh, you don't support the wildly popular, bipartisan congressional effort to make your sport more safe and fair? Why should I give you a dime?”

None of this is to say that the Horseracing Integrity and Safety Act is perfect. It' isn't. It does raise serious questions that ought to be answered sooner rather than later. But no legislation is perfect. Laws always include compromises between and among competing factions. This law will not do all it must do to rid the sport of cheaters and protect the horses we love. But the federal bill represents meaningful change. It will bring more uniformity to racing. It will upset the failed old system of state racing commissions. It will make it harder for cheaters to prosper. It will make it easier for those who endanger our horses to be caught.

There are many prominent voices in harness racing who want the USTA, at a minimum, to work alongside all the other stakeholders to try to make this legislation stronger and more fair. That this isn't happening, right now, before the legislation passes, is a crying shame but no great surprise. Some of the same folks who helped make harness racing vulnerable to questions of integrity, and viability, are the very ones who now are preaching that the new solutions included in the Integrity Act won't work. The problem isn't the legislation. The problem is USTA leadership, never missing an opportunity to miss an opportunity.

Andrew Cohen is a Standardbred owner and breeder.

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Experts Say Arkansas Derby Split Sample Still On Schedule–The Only Difference Is The World Is Waiting On It

Ever since word leaked out that Charlatan tested positive for a substance widely reported to be lidocaine following the Grade 1 Arkansas Derby on May 2, one of the biggest questions on the minds of readers is – isn't this an inordinately long period of time to wait for the split sample test?

The answer: no, not really.

Dr. Scott Stanley, who previously served as director of toxicology at Truesdail Laboratories and the Kenneth L. Maddy Equine Analytical Chemistry Laboratory at University of California-Davis, said this particular split sample came along at a tough time.

“In general, split tests for drugs detected in urine samples take three to four weeks minimum,” said Stanley, who is now a faculty member at the University of Kentucky's Maxwell H. Gluck Equine Research Center and UK Department of Veterinary Science. “In the busy season — late spring and summer months — those turnaround times often increase because of the heavy workload at most equine labs. This year is much worse, because most of the equine testing labs were shut down because of COVID-19, [and] the few labs still operating had reduced staff with social distancing required. The lab's first priority is to their own clients with split samples scheduled in available time.

“Taking all these circumstances into consideration, I wouldn't be surprise if any split sample this spring were to take six to eight weeks.”

The referee laboratory in this case likely didn't receive the split sample until late May or early June, putting us four weeks into the process. Stewards confirmed to the Paulick Report July 1 that the split results are not yet complete.

Why does it feel to race fans (and certainly, no doubt, to Charlatan's trainer, Bob Baffert) like an awfully long time to wait for results?

Probably because we're not often aware of how long the road between a positive post-race drug test and a stewards' ruling is until after a case is concluded. Just days ago, we reported on a settlement reached between trainer John Sadler and the California Horse Racing Board for three medication violations incurred in April and May 2019 for gabapentin and clenbuterol. In early February, Louisiana stewards fined trainer Joe Sharp for levamisole positives his horses incurred in December, which he said were the result of a deworming product.

The public typically isn't aware of drug positives until after a split sample has come back, an investigation is complete, and the stewards issue a ruling. That's because most racing jurisdictions have rules or statutes specifying post-race positives be kept confidential for some period of time. In some states, it's until the stewards make a ruling, in others it's until a hearing has been held, and in still other cases it's for a set period of time after the positive has been reported by the laboratory to the regulatory body.

The lone exception to this could soon be California. The California Horse Racing Board found itself under fire last year after the New York Times revealed 2018 Triple Crown winner Justify tested positive for scopolamine after his Santa Anita Derby win. A split sample confirmed the presence of the substance, and a CHRB investigation concluded it was a result of contamination from jimson weed. The regulatory body held a hearing into the matter behind closed doors (in August 2018, roughly four months after the race in question) and no one knew it had happened at all until the Times report. For many, it was the lack of transparency in the process, which was completely permissible by state statute, that was more troubling than the positive test.

Since then, California SB 800 has sought to change the state's Business and Professions Code on this point. Among other provisions, the bill would add a section to existing law requiring the CHRB to put on its website results of “all nonconfidential official test samples” within five business days of confirmation of the split sample or the waiver of split sample by the trainer rather than keep those results confidential until after a hearing and ruling.

SB 800 has passed the California Senate unanimously and has moved on to the Assembly Committee on Governmental Organization as of June 18.

“The confidentiality requirement is in the Business & Professions Code, meaning it takes action by the Legislature, not the Board,” said Scott Chaney, executive director of the CHRB. “If it eventually passes both the Senate and Assembly and is signed by the Governor, it will become law on January 1. We anticipate that all of these things will happen.”

Of course, that still doesn't mean the public will have access to an initial positive test – a test performed by a state-contracted laboratory at the order of a state government body. To some fans and members of the public, it may seem that information should be part of the public record.

On the other side of the fence though, attorneys say disclosing post-race test results without the benefit of a split sample could truncate a trainer's right to be treated as innocent until proven guilty.

“A lab calls a positive and of course that's an allegation — there hasn't been due process,” said attorney Drew Mollica. “So I'm taking this for granted, no commission has ever told me this, but I'm thinking the commission says that it's only an allegation. They don't distribute the purse, they keep it confidential until they litigate it.”

Charlatan ended up with an injury that took him off the Kentucky Derby trail anyway. But if he hadn't, Mollica points out that a positive in a Derby points race has consequences for other trainers and owners as long as it remains unresolved, whether they're told about it ahead of a split sample test or not.

Justify was not disqualified for his post-Santa Anita Derby overage because officials ultimately decided his positive test was due to contamination. But if he had been disqualified in August from his Derby prep win in April, it certainly would have raised questions about the time it takes the commission and laboratories to complete initial testing, split sample testing, an investigation, and a ruling and/or hearing.

“Here's my problem with that in this day and age, especially when it relates to the Kentucky Derby — because of the points to get into the Derby, you have a problem now,” said Mollica. “Horses get into the Derby on the points, so I'm of the opinion that if the test comes up bad in those races, they should announce it because it has ramifications.

“In the real world, you're innocent until proven guilty. We as defense lawyers want due process. But I think there's a competing interest as it relates to these Derby races that get horses to the next level that might not belong there. This is a problem, and I don't think they should award the points until it's been litigated. I know that's a problem, especially if you win points two weeks before the Derby and it gets you in, but there are ramifications here for the people who are second and third.

“Justice delayed is justice denied, I get it. A rush to judgment is also bad. There are competing interests. I understand both sides of it.”

Besides the impacts of disclosure and nondisclosure to trainers and fans, there are other people who could be impacted by knowing which races and trainers are awaiting the results of a split: the employees of the laboratory asked to do the split sample test.

“In my experience at LGC we used a laboratory information management system that assigned a laboratory number to every sample upon receipt,” said Dr. Rick Sams, former laboratory director for LGC Sport Science in Lexington, Ky. “The sample was identified only by this number while in the laboratory so that testing personnel would not know the origin or history of any sample. This was done for the purpose of reducing bias. Nevertheless, I find it unfortunate and disturbing that the findings for this sample were released and the trainer identified before the split sample analysis had been completed because this put the split sample laboratory in a very difficult position.”

The situation could become especially sticky if for some reason the referee laboratory has a different finding than the lab which conducted the initial positive test – how will the public trust the results now that everyone, including the referee lab, knows the split sample came from an accomplished trainer and an impactful race? Could the release of the initial test results impact the commission's case (or Baffert's) if the stewards end up disqualifying the horse?

For now, it seems everyone – the horse's connections and the public alike – have more questions than answers.

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