drugs in racing | Horse Racing Free Tips

Your Questions About Split Sample Testing (And More), Answered

Over the past week we have received numerous emails asking questions about the split sample testing process, as the racing world waits for the next news in the Medina Spirit Kentucky Derby scandal. We got even more questions after Louisville Courier-Journal reporter Tim Sullivan revealed that the split sample taken after Medina Spirit's Kentucky Derby run hasn't yet been sent out for analysis.

We examined the process briefly last year when racing fans grew restless awaiting the split sample results from the 2020 Arkansas Derby card, but wanted to address a few of the questions that were specific to this case.

We spoke with Dr. Mary Scollay, executive director of the Racing Medication and Testing Consortium (RMTC) and former equine medical director for the Kentucky Horse Racing Commission, to learn more about how this regulatory process normally works. (Current staff at the commission are prohibited from discussing an ongoing case, particularly one like this where the split sample has not yet been tested.)

What's a split sample and how is it collected?

The split sample, or “B” sample, is collected at the same time as the primary sample, in the test barn after the race. Urine or blood is collected from the horse and subsequently divided into two containers. One of these is sent off for analysis by the laboratory contracted by the commission – in this case, Industrial Labs – for post-race testing. The other is stored under lock and key at the track at which it was collected.

If a lab finds and confirms a drug positive or overage in the primary sample, the trainer is notified and provided the opportunity to request to have the split tested. The trainer is allowed to select which lab will test the sample, and in many places is required to select a lab with a certain level of accreditation, like RMTC accreditation. All RMTC-accredited labs are capable of performing split sample testing.

How often are split samples negative, and what happens if they are?

If a split sample is negative, or if the split sample laboratory finds the substance in question at a level below the regulatory threshold, then there is no violation of the rules and therefore no ruling issued.

Scollay said that in her experience at the Kentucky commission, it was extremely rare for a split to come back negative.

“Maybe over 11 years, maybe there were four [cases where a split lab found a lower, legal level of a substance in question],” she said. “I can only think of one split in all those years where a laboratory reported a finding and the split laboratory did not detect it. And in that particular case it was a fairly obscure substance.”

Do split sample labs know whose sample they're testing?

They aren't supposed to. In normal circumstances, the lab would receive the sample from the appropriate jurisdiction and would be told which substance had been found, and in what concentration. They would not be told the identity of the horse, trainer, or race. All testing samples are assigned numbers at the time of sampling to keep them anonymous to the primary and split sample testing labs.

Scollay said the publicity around this split sample could lead to a reluctance from some laboratories to take the sample on – but she has also heard from at least one lab director who isn't convinced that would be a factor.

How is a split sample test different from the original test?

A split sample test would be the same as the confirmatory analysis run by the primary testing lab. When the primary testing lab gets a post-race sample, it will first screen the sample against its catalogue of substances to see if any of them are present. When it does identify one, it then must perform confirmatory analysis to decide how much of the drug is present in the sample.

The split sample lab will not screen the split against its catalogue, but will instead perform confirmatory analysis similar to what the primary lab did. The split sample lab is provided with the concentration from the original test only to help technicians choose the proper calibrators for an accurate reading.

“The estimated concentration, the reason that's provided is so they know what calibrators – known positive concentrations – they need to run in order to make an accurate determination about the concentration about the sample,” she said. “If you know the concentration is five, your calibrators might be one, two, five, seven, and ten. But if you don't know the concentration, your calibrators might be one, 10, 25, 50, and 100. Then you're not able to get a very accurate estimate of the concentration.

“You're trying to sandwich your unknown or your test sample in the middle of the range of known concentrations. Think of it of if you have eight or ten glasses of water and you put blue food coloring in one and keep diluting across glasses until it gets lighter and lighter. You've got a glass with blue in it and you're going to line that up to try and see which one of those tinted blues is closest to your color.”

It's not unusual for there to be as much as a 25 percent variability between labs when you get down to very small measures like picograms. For substances that have thresholds governing how much of a drug is considered legal, that can make a big difference. (In this case, however, there is no threshold for betamethasone so any amount would be considered a violation.)

Once the lab actually begins the analysis, it takes the same amount of time as the initial post-race testing – but the hold-up is usually scheduling. Dr. Scott Stanley told us last year that it's not unusual to wait three to four weeks in the non-busy season to get a split result back. Given the constraints of the COVID-19 pandemic on staffing levels, he expected the Charlatan split sample in 2020 to take six to eight weeks; in the end, stewards in Arkansas issued a ruling on July 15 for races run the first week in May.

How is the split sample lab chosen, and how long does that take?

The process of choosing a lab depends on a few factors. Labs can reject a split sample request for various reasons. As we explained last year, contract work (like post-race and TCO2 testing) are the main priority for testing labs, because that's what pays their bills. Spring and summer are the busiest times for testing laboratories, as there is racing going on in more places than there is in the wintertime.

Scollay said in her role at the Kentucky commission, it wasn't uncommon for labs to tell her it might take weeks before they would be able to promise a result – or even months.

“When I worked for the horse racing commission, it was my goal to make sure a trainer always had a choice and sometimes that meant two laboratories,” she said. “Laboratories would respond, 'We're way behind' or 'We've got a bunch of confirmatory analyses lined up' or 'Our turnaround time would need to be 12 weeks.'

“I can't remember the last time I got a positive response from all the RMTC-accredited labs. I don't know that I ever did.”

If there's any kind of back-up for the lab's regular work – new equipment, staffing issues, etc. – that has a ripple effect on regular testing and hence, split sample timeframes.

It can also matter what substance is involved; if the primary lab found an unusual drug, or an uncommon drug at a particularly small concentration and the lab getting the split sample request already knows it can't reliably test for that substance to the same limit, it will reject the split sample request. Scollay said that in this case, that shouldn't be an issue because betamethasone is a controlled therapeutic drug which testing labs would encounter frequently. She expects all RMTC-accredited labs to have the same sensitivity of testing when looking for this particular substance.

Why can't we eliminate delays by having trainers choose split sample labs and send samples off before the first round of tests come back?

For one thing, it would be incredibly expensive for either commissions or horsemen to pay for double testing to be done on every sample. For another, split samples aren't obligatory – a trainer can decide to waive his or her right to the test and take the penalty if they feel it's not worthwhile to fight the positive.

Most importantly though, Scollay said the differences in testing capabilities for rare substances, and the variation in timelines for each lab through the year would make it meaningless to choose a lab before knowing what substance might be at play.

“It would be foolish for a commission to consent to that, because if the lab can't do the work and the sample gets sent to them, a positive test gets negated and that certainly doesn't support the integrity of the game,” she said.

So when will Baffert be banned?

Hang on a minute. The Kentucky regulations are very clear about the penalties stewards may hand to a trainer for medication violations. While they're given a range of potential suspension lengths and fines to work within, they don't have the latitude to throw those out the window and revoke a trainer's license. Under current regulations, betamethasone is a Class C medication in Kentucky, and Medina Spirit would be Baffert's second Class C in 365 days if the split is positive. (Merneith's overage for dextrorphan and the two lidocaine overages from last year fall in different drug classes by Kentucky standards. So, although this is Baffert's fifth therapeutic overage in a year, it's only his second of this type.) The penalty range for a second Class C violation in 365 days is a 10- to 30-day suspension and a $1,500 to $2,500 fine.

Scollay said there is a catch-all rule in Kentucky, as there is in many places, designed to deal with conduct “contrary to the best interests of racing,” but that's typically reserved for more extreme situations, not therapeutic overages.

What about the disqualification of the horse?

The same Kentucky regulation, KAR Title 810, Chapter 8, Section 030, states that a first Class C offense for an owner “shall” result in disqualification and loss of purse. Unlike trainer penalties, there is no language included allowing for stewards to consider mitigating circumstances. Medina Spirit owner Amr Zedan has engaged an attorney who's already preparing to argue that the stewards aren't bound to disqualify a horse.

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Industry Voices: A Bargain Cast in Deep and Abiding Love

Note from the publisher: If you're like many of us, you have been assailed by friends, family and members of your community as you have gone about your daily life for the past two weeks. “Was the horse drugged? Was it the cream?” I never thought I'd be discussing picograms at pickleball, but here we are. Sunday brought a new wave of texts and emails with the publication of an op/ed from the New York Times editorial board, and a devastating article in the New Yorker. People I haven't heard from in years sent me the latter, and as I asked others in the industry how they were explaining this to people, my friend Bob Duncan forwarded me his response to a friend. Bob is one of the smartest people I know, and for years has been an advocate for change in the way horses are handled in racing. As such, I thought his response was not only unique, but a perspective that should be shared. -Sue Finley

Our back is against the wall. How do you explain to people the relationship, the partnership that has evolved over thousands of years? Our relationship with the horse isn't about dominance and subjugation. It's about mutual understanding and cooperation. It's one of the purist symbiotic relationships on earth. It's about two species adapting to survive. Without each other it's conceivable neither would exist to this day. Is racing essential? Of course not. But think of what we lose by allowing these magnificent, majestic creatures to fade into extinction. We have lived, breathed and died alongside each other in service of our long-term survival. We live in an environment with the horse that places us in trust of our mutual existence. It's a bargain cast in deep and abiding love.
I guess it's inevitable, as the world “advances” to more high-tech, sanitized pleasures, that our relationship with these beings will seem trivial, possibly cruel and self-serving, but I feel blessed to have had the relationship, the knowing, including the scars of learning that brought me to realize what love truly is.

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Heleringer: Will The Absolute Insurer Rule Save Racing … Again?

“Doped” horses. “Hopped” horses. “Drugged” horses. Cheating. Indictments. Scandals. Let the bettor beware.

Those terms don't describe the current conditions in horse racing, but the overarching problems that dogged the sport nearly 90 years ago when racing had basically no reliable security system in place to protect the betting public. As is the case today, horse racing in the United States had no national governing body that set uniform standards and rules to police the sport. (Thankfully, this will finally change on July 1, 2022, with the federally mandated Horseracing Integrity and Safety Authority.)

Until his death in 1924, August Belmont Jr. could unofficially govern the game by the sheer force of his name and prestige — he had created the concept of a racing commission in 1895 and then persuaded a New York legislature dominated by Republicans to enact it into law. (Belmont was a staunch Democrat.) But at his passing, there still was no effective means – no proven scientific process – to combat racing's biggest challenge: how to detect and thwart the cheaters, the unscrupulous horsemen who drugged horses to reap huge “scores” at the betting windows.

Joseph Widener, in an attempt to both reform a sport he loved and, less altruistically, protect the sizeable investment he was making in the total transformation of Hialeah Park in south Florida, dispatched Marshall Cassidy in 1934 to France to study the post-race drug-testing system of a horse's blood/saliva the French racing authorities had conceived to police their own game. Cassidy brought the system back to the United States and installed it for Widener at Hialeah (overcoming a brief but bitter strike of horsemen in the process).

That single act, with stout punishment for offenders, copied nationally by a burgeoning racing industry that couldn't build racetracks fast enough, may have single-handedly saved the sport of horse racing from itself. The fans that fueled this explosive growth could now push their money through the windows with some degree of confidence they were betting on an honestly-run sport.

The simple, uncomplicated standard that governed was called the “absolute insurer rule.” The person doing the “absolute” insuring was a horse's trainer of record. It didn't matter if that trainer was (theoretically) on a three-year shuttle to Mars, if he ran a horse during that time anywhere in America and was the listed trainer of record; he was totally and exclusively liable for the consequences of any failed post-race drug specimen – not the groom, the hotwalker, a veterinarian, or even the familiar “disgruntled former employee.” Confirmed “positives” meant, automatically, the DQ of the winner, loss of purse by the owner, and a fine/suspension or both for the trainer. But how would the reviewing courts interpret such a unique guilty-until-proven-innocent standard? The answers were not long in coming.

In a landmark case with a number of similarities to the current Bob Baffert imbroglio, in late 1945, prominent trainer Tom Smith, the man who had trained the immortal Seabiscuit, was suspended for an entire year by New York's racing board after one of his grooms had been observed in the paddock at Jamaica spraying a “substance,” later confirmed as ephedrine, into the nostrils of Smith's horse. (Smith wasn't even at the racetrack that day.) In a battle of experts sure to be reprised when the Baffert hearing begins, Smith's expert testified the ephedrine's effect on the horse was “negligible” while New York's chemist believed the drug “might [key word] affect a horse … by increasing its respiratory capacity.” The racing board's harsh penalty was upheld by New York's appellate court. (Smith was even ordered to pay the board's court costs of $50.)

But, at least initially, no other state was inclined to follow New York's lead. Perhaps as a consequence of the strong (but widely unpopular) sanction meted out to Tom Smith, Maryland's highest court – barely two months after the Smith decision was handed down – affirmed a lower court's decision declaring Maryland's own absolute insurer rule unconstitutional. Trainer J. Dallett “Dolly” Byers had a winning steeplechase horse at Pimlico test positive for “benzedrine,” a stimulant. Echoing Mr. Baffert's initial defense after Medina Spirit's positive for betamethasone, Mr. Byers testified at his hearing that he was totally innocent and had no idea how the prohibited drug got into his horse's system. Byers' defense, complete with character witnesses, was found unavailing and he received the same one-year suspension that Tom Smith had gotten. A reviewing trial court threw out the suspension and the law/regulation on which it was based, calling the rule's “conclusive presumption of guilt” a “great vice.” A unanimous Maryland court of appeals affirmed and went even further: “This irrebuttable presumption [of guilt under an absolute rule] destroyed the right of [Byers] to offer evidence to establish his innocence. If this is 'just,' then the term 'unjust' has no meaning.”

Florida's Supreme Court weighed in the following year (1947), striking down that state's own absolute standard in the Baldwin case, holding for the first time anywhere that a horseman's license was “a valuable property right” that could not be suspended without due process of law, i.e., without some finding of guilt based on evidence not a mere violation of an automatic rule.

But just when it looked like the absolute insurer rule was going to be ruled off, California's Supreme Court upheld the beleaguered standard in 1948. In a 5-2 decision that the two dissenting justices called “un-American,” the majority reinstated a six-month suspension of trainer W.L. Sandstrom's license after his winning horse at Del Mar, Cover Up, tested positive for a “caffeine-type alkaloid.” Sandstrom's sanction, said the high court, was not “unreasonable, arbitrary, or capricious” since the absolute rule upon which it was based “was designed to afford the wagering public a maximum of protection against race horses being stimulated or depressed” and was a “reasonable exercise of California's 'police powers.'”

Over time, the Sandstrom decision became the consensus view of nearly every court that considered constitutional challenges to racing's single most important rule. (Both the Byers and Baldwin cases were eventually overruled.)

With the hiring of Spencer J. Drayton in 1946, wooed away from the upper leadership of the FBI, and his national efforts to “clean up racing” with the Thoroughbred Racing Protective Bureau (TRPB) that included the agency's aggressive enforcement of absolute insurer rules, horse racing became a major recognized sport in the United States, as honestly-run and incorruptible as humanly possible. The game enjoyed its “golden age” thereafter up through the 1970s.

The question must be asked, in the crucible of the serial Bob Baffert “medication” controversies, which supplanted the serial Rick Dutrow “medication” controversies, can horse racing survive in this country without a drug-testing system that is NOT based on the strict enforcement of an absolute insurer rule that the betting public can rely upon with the utmost confidence?

While every horseman's constitutional right to due process of law must be protected, at the same time, does the sport's leadership seriously believe that the wagering public (or their elected representatives) will tolerate a drug-enforcement apparatus that, far from the zero tolerance standard it adopted barely a dozen years ago (and has obviously been discarded), permits a chaotic system that allows excuses, explanations, and prevarications for drug positives that are only limited by a licensee's imagination? Exactly how is the public interest served if horsemen can plead, not just in mitigation, but as an affirmative defense, “environmental contamination,” transferred lidocaine patches, innocent applications of ointment, and wide-open-to-varying-interpretations how many picograms of a “therapeutic” (but nevertheless prohibited during races) medication “affects” a horse's performance during a race that lasts perhaps a minute and a half?

Now that the abandonment of the former “absolute” standard is on full display in the aftermath of a positive drug screen of the winner of the world-renowned Kentucky Derby, with the attendant incalculable damage to horse racing's “brand,” is it time once again to resume the strict application of an absolute insurer rule to save an industry that employs tens of thousands and is enjoyed by millions?

Bob Heleringer is a Louisville, Ky., attorney, former racing official and author of the legal textbook Equine Regulatory Law, the second edition of which will be released later this year by the University Press of Kentucky.)

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Preakness Saturday Statement From Baffert: I Am ‘Truly Sorry’ For Handling Of Medina Spirit Scandal

The following statement was provided exclusively to NBC Sports by Bob Baffert. Baffert was asked to appear on Saturday's Preakness telecast, but declined on the advice of his legal team.

As Medina Spirit prepares to run in the Preakness Stakes today, I want to keep the focus on this amazing equine athlete and not me, which is the primary reason I will not personally be in attendance. I do not want to serve as a distraction to what has always been of paramount importance – the joy of this great sport and the horses that make it possible.

As I have stated from the beginning, there was never any attempt to game or cheat the system and Medina Spirit earned his Kentucky Derby win. While the presence of 21 picograms of an allowable therapeutic medication has yet to be confirmed by the split sample analysis, it would have nothing to do with Medina Spirit's hard earned and deserved win. That win was the result of the horse's tremendous heart and nothing else.

Notwithstanding the foregoing, I acknowledge that I am not perfect and I could have better handled the initial announcement of this news. Medina Spirit's Kentucky Derby win was so personally meaningful to me, and I had such a wonderful experience on May 1 at Churchill Downs, that when I got the news of the test results, it truly was the biggest gut punch I had ever received and I was devastated. That, coupled with the fact that I always try to be accommodating and transparent with the media, led to an emotional press conference on May 9 in which I said some things that have been perceived as hurtful to some in the industry. For that I am truly sorry. I have devoted my life's work to this great sport and I owe it, and those who make it possible, nothing but an eternal debt of gratitude.

For those who want an explanation for what transpired with Medina Spirit, I have tried to be open and transparent from the beginning. Our investigation is continuing and I don't have definitive answers at this point. What I do know is that neither my barn, nor my veterinarians, directly treated Medina Spirit with the anti-inflammatory medication betamethasone. Even though it is allowable, it is just not something we have ever used with this horse. The only possible explanation that we have uncovered to date – and I emphasize the word possible – is that betamethasone is an ingredient in a topical ointment that was being applied to Medina Spirit to treat a dermatitis skin condition he developed after the Santa Anita Derby.

I have been deeply saddened to see this case portrayed as a “doping” scandal or betamethasone labeled as a “banned” substance. Neither is remotely true. Betamethasone is an allowable and commonly used medication in horse racing. Further, 21 picograms would have zero pharmacology in a horse. All I ask is that everyone not rush to judgment and allow all of the facts, evidence and science to come to light.

Lastly, while this has been extremely hard and emotionally draining on me and my family, today is not about Bob Baffert. Instead it is about Medina Spirit and all of the other equine athletes in our tremendous sport. I hope that everyone will direct their attention to them and give them the love and respect they so richly deserve.

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