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‘Broken Systems And Cronyism’: WHOA Advisory Board Says Horseracing Integrity And Safety Authority Will Flounder Without USADA

The Water Hay Oats Alliance (WHOA) is a grassroots movement of like-minded individuals who support the passage of federal legislation to prohibit the use of performance-enhancing drugs in the sport of horse racing. The appointment of an independent anti-doping program run by the U.S. Anti-Doping Agency (USADA) will resolve the problem of widespread drug use in American racing and put U.S. racing jurisdictions in step with international standards.

Doping destroys public confidence in racing, defrauds the betting fan, weakens the genetic pool, and, most importantly, puts the life and limb of our equine athletes and their jockeys at risk. It is obvious that after years of committee review and discussion, America's racing industry cannot police itself by eliminating the proliferation of performance-enhancing drugs in our sport, nor does it possess the power to adequately punish the purveyors of these drugs.

It was the summer of 2012…
Our original team of supporters had just returned from a trip to Washington, D.C., lobbying for drug and medication reform in U.S. racing. The legislation then was entitled The Interstate Horseracing Improvement Act of 2011 sponsored by Congressman Ed Whitfield (R-KY). It called to amend the Interstate Horseracing Act of 1978 (IHA). After that trip, it was obvious that the racing industry would never support those measures, so we began discussions with the United States Anti-Doping Agency (USADA) to help address the intractable issue of doping in racing.

We decided that our individual voices would make a greater impact if we banded together under one umbrella, with one voice. It was crystal clear that our goal would be to find a way to put USADA in a place of independent management and oversight.

That was the beginning of the Water Hay Oats Alliance (WHOA). Over time, owners, breeders, trainers, jockeys, and industry professionals joined our ranks. We included racing fans and handicappers, partners in our sport. We included members of all racing disciplines: Thoroughbred, Standardbred, and Quarter Horse racing.

Since that time, USADA has played an integral role as a valued partner in efforts to pass the industry-shifting reform legislation that created HISA. USADA chief executive officer Travis Tygart and his team have shared their time and expertise, often at their own expense, educating countless individuals and racing industry groups about the importance of clean sport and what USADA's gold standard program could do to better racing.

Today, WHOA has grown from that handful of advocates to over 2,000 industry stakeholders: over 850 owners and breeders, 950 industry professionals, and a host of racing fans and handicappers.

Since that original bill, there have been five variations of legislation to address doping in horse racing. With each variation, WHOA's simple mission statement stood the test. As long as the legislation met our mission with the placement of USADA, WHOA supported it.

When the Horseracing Integrity and Safety Act was passed in December 2020, we all celebrated. Our mission was complete. The legislation named USADA, an independent third party, as the entity to serve as “the anti-doping and medication control enforcement agency.”

But, not so fast…
In late December, negotiations between HISA and USADA stalled. The legislative compromise that WHOA supported – to put USADA in their rightful place with a five-year contract – has been aborted. HISA is looking for other options and interviewing other entities to fill USADA's place.

“What a shame. What a travesty. What are the insurmountable issues that would preclude a fivc-year contract between USADA and HISA?” asked international owner and breeder George Strawbridge.

“I was so disappointed to see the breakdown of talks between HISA and USADA. There is no other agency that will handle testing as thoroughly as USADA, we need to get them back to the table so they can clean up our sport.” said leading Classic trainer Graham Motion.

Michael Engleman, a horseman, and former international cyclist, lamented, “Like so many others across the world, I was extremely disappointed to read the news of HISA suspending talks with USADA. The reality is that for U.S. racing there is no legitimate and globally respected alternative to USADA. Anything less than USADA just shows that we are not serious about making honest and real change for what is best for racing, the racing fans and the horses we all love.”

Members of WHOA have reached out to both parties asking for an explanation of the stalemate and offering to help bridge the gap. To date, no light has been shed on the subject. The industry deserves to know what the issues are that caused the impasse. “Don't live in the problem, live in the solution.” In this case, without understanding the problem, we can't help find a solution.

WHOA's support of the Horseracing Integrity and Safety Act hinged on the fact that currently there is no other “entity that is nationally recognized as being a medication regulation agency equal in qualification to the United States Anti-Doping Agency.” We challenge HISA to find another agency that meets USADA's program criteria. THERE IS NONE.

“We need USADA now. Time is of the essence to put an end to doping in racing.” said Triple Crown winning jockey Steve Cauthen.

Members of WHOA do not feel that HISA has the expertise or luxury of time to build or piecemeal together an entity that would come close to doing what USADA does so well. It is a well-oiled machine. There is a level of trust that USADA stands its ground for what is right. It will not be swayed by outside parties. It is truly independent.

Owner, breeder Bill Casner believes that “without the years of expertise that USADA provides, HISA would basically be trying to reinvent the wheel. It will be floundering, trying to deal with the sophistication of the cheaters. We have to get USADA on board.”

WHOA will continue to endorse the independent turn-key program USADA brings to the table. Their scientists are respected at the highest levels. USADA's drug testing capabilities exceed that of any other agency in the field. They have been involved in drug testing, results management, and adjudication longer and at a higher level than any other organization. USADA utilizes advancing sciences to look for new performance-enhancing drugs to stay ahead of the cheater and uses data analysis to catch them and provide a fair process. USADA is a signatory to the World Anti-Doping Agency (WADA), giving it access to the best global anti-doping practices and science.

“USADA's knowledge of drug testing exceeds that of any other agency in the field. They have been involved in drug testing longer and at a higher level than any other agency. There is a major difference between testing at the Olympic level than the NFL, for example.” said Barry Irwin of Team Valor.

“USADA has been at the heart of WHOA's efforts from the beginning. We all appreciate that changing a culture and a system will be challenging and expensive. But desperate times call for desperate measures.” said Staci Hancock, WHOA's managing member. “Racing's reputation and future depend on bold changes for the betterment of our sport and the health and well-being of our horses. USADA can give us that, putting an end to business as usual with broken systems and cronyism. We can't afford anything less.”

“I don't think the horse industry realizes the plight it is in, and it desperately needs the integrity of USADA to help shore up its sad reputation. Cheaters are still cheating, horses are still dying, and public perception is still worsening,” added Arthur Hancock of Stone Farm.

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Cohen: Harness Racing Is Trying To Ignore Biggest Scandal (Yet) Of The Year

“If you see something, say something,” unless it's embarrassing and maybe criminal.

The biggest story in horse racing last week was the federal conviction of Dr. Seth Fishman after a horse-doping trial that ought to strike fear in the hearts of the racing communities across the world. Seemingly caught red-handed, with his lawyer lamely trying to portray him as a paragon of virtue, Fishman almost certainly is going to prison. It's even more certain that his customer database, in the hands of federal lawyers or investigators and now made public, threatens to turn a really bad scandal about the prevalence of doping into an existential crisis for both Thoroughbred and Standardbred racing.

The second biggest story of the week, at least as far as harness racing goes, was the industry's lack of alarm about Ross Cohen's testimony in Fishman's trial. Cohen was a harness trainer of little note until he pleaded guilty and then helped the feds incriminate Fishman. As part of his plea deal, Cohen told prosecutors and the jury that he fixed harness races at Yonkers Raceway, in New York, one of the most historic and important tracks in the country. Cohen made the allegations under oath and penalty of perjury and it's hard to imagine that federal prosecutors don't have a reasonable belief that he is telling the truth.

The third biggest story of the week, in harness racing, was the decision by Jeff Gural, owner and operator of the New Meadowlands Racetrack (and, full disclosure, a partner of mine in several horses) to allow trainer Adrienne Hall to race horses at the track despite her damning testimony against Fishman. Hall says she bought the illegal drugs Fishman was peddling and used them on a horse, who did so well doped up Hall felt compelled to thank Fishman for the juice. “He dominated. He was a completely different animal. I was so happy,” Hall reportedly told Fishman. Like Cohen, Hall copped a plea. Unlike Cohen, Hall is getting another chance.

And, finally, came publication of the Thoroughbred Daily News' interview with Scott Robinson, now serving time in a federal penitentiary in Florida for selling and distributing misbranded and adulterated drugs. “I sold to everybody,” Robinson now says. “More people should be indicted. Definitely.” But he adds that the feds (and presumably state racing commissions) have not pressed him to divulge the names on his customer list and he isn't inclined to do so. He told Bill Finley at TDN without an apparent shred of irony: “I know my career is over, but there are people out there who still work in racing and their livelihoods are at stake.”

These are stories about cheating and doping and bad medicine that are vitally important today and likely to be important for years to come. They raise questions and concerns of racing integrity at a time when the future of the Horseracing Integrity and Safety Act hangs in the balance. A federal judge is likely to rule soon on a request for an injunction against the federal legislation, a challenge brought by a few rogue horsemen's associations, including the United States Trotting Association, the increasingly-divisive trade group that wants to scuttle HISA even though harness racing is not covered by the limbo-ed new law.

There are, thankfully, still enough independent media voices within the world of Thoroughbred racing (including The Paulick Report, of course) to cover these stories and to shed light on the problems the industry faces. The same cannot be said of coverage of harness racing. There are only a few outlets that offer anything resembling independent news coverage and virtually none of that coverage is investigative. Some of this is a matter of practicality. There simply aren't enough legitimate journalists who are both interested in and capable of covering the sport. And some of it is a matter of policy. Few want to pay someone to ask tough questions.

So we get what we've gotten over the past few weeks. Belated pool coverage of Fishman's doping trial (coverage which, I should say, was good) and virtually no public mention of Ross Cohen's role in the case. “I paid drivers for somebody to hold their horses back in races,” Cohen reportedly testified. Which drivers? He was not asked and did not say. The New York track is owned by MGM Resorts and presided over, at least from the horseman's perspective, by Joe Faraldo, who is both the president of the Standardbred Owners Association of New York and chairman of the United States Trotting Association.

Faraldo, you might recall, was linked as an owner at some point with one of the trainers later indicted by the feds. Was Faraldo on a witness list for the Fishman trial? Is he on a witness list for related trials? Has he been approached by federal investigators or defense attorneys to share what he knows about the operation of Yonkers as it relates to the conduct of Fishman and Cohen? We don't know. Is Yonkers or the New York racing commission or Faraldo's horseman's organization investigating the recent allegations? We don't know. Has the USTA ever looked into whether Faraldo's dual roles create conflicts of interest? We don't know.

Brad Maione, a spokesman for the New York State Gaming Commission, was particularly unhelpful. He told me recently: “We cannot confirm or deny whether an investigation is being conducted.” When I asked whether any New York racing licenses had been suspended or revoked as a result of the federal case he responded: “We cannot confirm or deny whether an investigation is being conducted.” When I asked if state regulators were cooperating or had cooperated with the feds during the course of the investigation, he responded: “The commission regularly collaborates with state, federal and local enforcement.”

We certainly can't go to the USTA's website for answers. The USTA is quite capable of promoting stories it wants to share with its readership. Its propaganda campaign against the HISA shows there is plenty of room on that main page for stories about racing integrity. But the Fishman trial? The USTA put up the pool piece after Fishman was convicted. Cohen's allegations against Yonkers drivers? I still have not seen a word of it on the USTA's site. Maybe that's because Faraldo, speaking on behalf of the USTA, keeps embarrassing himself in national publications when given the opportunity to denounce the Fishmans of the world.

The USTA's laughable pro-integrity campaign is based around the bumper-sticker line: “If you see something, say something.” Well, Ross Cohen saw something. And Ross Cohen said something. He said he was part of something illegal at Yonkers. He said it under oath. What's the USTA going to do about that, apart from ignoring that news on its website? Who is going to call for an independent investigation into racing at Yonkers Raceway? The USTA and Hanover Shoe Farms, the sport's largest breeding operation, established a $250,000 matching fund grant in 2020 to “support the work of restoring full integrity of that sport.” Is some of that money going to go into investigating Cohen's allegations? If not, why not?

I asked a USTA director some of these questions last week and the responses I got help explain the ways in which the organization is much closer to being part of the problem than being part of the solution. “In general the USTA does not do investigations,” I was told when I asked about the Cohen case. “We are not a news reporting organization in this manner,” I was told when I asked about reporting Cohen's allegations. Conflicts of interest? “If an issue would become too close to a Director he/she would likely remove themselves from the issue in question,” I was told, a fiduciary standard that I suspect doesn't cut it on Wall Street.

If I were an honest driver at Yonkers I would want my name cleared from the allegations Cohen leveled at the trial. If I were an honest trainer at Yonkers I would want to know more about what Cohen says he did and how he says he did it. As an owner of horses who race at Yonkers I want to know more about the race-fixing schemes. If I were a bettor, I wouldn't bet a dollar more there until I know the scheme that Cohen described ended when he was caught. None of this should be controversial. Either the USTA, New York regulators, and the SBOANY are as dedicated to protecting honest horsemen and horsewomen as they say or they are not. We all are better off knowing the answer to that question sooner rather than later.

Andrew Cohen is a Standardbred owner and breeder and a two-time winner of both the John Hervey Award and the O'Brien Award for commentary on horse racing.

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Meadowlands Says It Won’t Scratch Adrienne Hall’s Horses

The Meadowlands released a statement late Thursday saying it will not scratch horses owned by Adrienne Hall, a harness owner and trainer who testified in federal court last week against Seth Fishman while admitting she used his performance-enhancing drugs on her horses.

Fishman was found guilty Wednesday of two counts of conspiring to violate adulteration and misbranding laws and the manufacture of PEDs administered to racehorses, and faces up to 20 years in prison.

The statement stands in contrast to the policy of the United States Trotting Association, which said Tuesday that her USTA membership had been revoked per Article 1, §4 of the Association bylaws. USTA membership is not required to be granted a Pari-Mutuel racing license in New Jersey, thus she remains eligible to race per the New Jersey Racing Commission.

“We disagree with the USTA decision and we applaud Ms. Hall for coming forward,” said Meadowlands president Jeff Gural. “To penalize those who testify for the prosecution will only serve to further the already existing notion that saying something will only lead to problems for yourself. It will discourage the type of participation necessary to convict the indicted persons, as Ms. Hall's testimony has helped on this case.

“The lack of action by the USTA during this five-year effort on our part to get rid of the cheats along with their continued opposition to the HISA [Horseracing Integrity and Safety Act] legislation which, with some changes, is our only hope of keeping the chemists out is dangerous to Harness Racing. We have received no support from USTA or any of their members in trying to eradicate the drugs and those who use them from racing.”

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Taking Stock: Constitutionality Matters

Last Friday, on the same day that Bob Baffert's New York Racing Association (NYRA) suspension hearing was ending in New York, the Texas attorney general filed a motion in a Texas federal court to join the National Horsemen's Benevolent and Protective Association (National HBPA), et al., in arguing that the Horseracing Integrity and Safety Act (HISA), enacted late last year, was unconstitutional.

Baffert had challenged his suspension, which was summarily instituted by NYRA without a hearing May 17 after the Baffert-trained Medina Spirit (Protonico) had tested positive for betamethasone in the Gl Kentucky Derby. Baffert had sought an injunction to stop the suspension so that he could race at NYRA tracks last summer. United States District Court Judge Carol Bagley Amon granted the injunction July 14. She wrote: “In sum, I find that Baffert has established a likelihood of proving that NYRA's suspension constituted state action, and that the process by which it suspended him violated the Due Process Clause of the Fourteenth Amendment of the United States Constitution.”

Judge Amon also wrote that “the public has no interest in having the 'integrity of the sport' enforced by unconstitutional means.”

That's a profound statement, but it may not mean much to those horse racing folks on social media who'd like to ban Baffert and others with medication positives through any means necessary, constitutional or not. As members of the peanut gallery, they have a right to that sort of chatter.

Journalists, however, are another matter and should be held to a higher standard. They should be impartial in reportage and knowledgeable about the issues in editorials. In their eagerness to support HISA, for instance, some who cover racing have shown little critical thinking about its constitutionality. In fact, my colleague Bill Finley wrote a pro-HISA Op/Ed piece in these pages that implied the National HBPA was challenging HISA in court simply to retain the status quo, rather than having valid concerns about HISA's constitutionality. He wrote: “It's hard to imagine that there is one horseman anywhere who cares one bit whether or not HISA is unconstitutional or not.” That's his opinion, but there are valid concerns about HISA nonetheless. And taken at face value, his comment could easily apply to those that backed the passage of HISA as well.

With an avalanche of “doping” publicity in the game over the past few years, many writers, like many fans on social media, were understandably smitten with the concept that HISA, with United States Anti-Doping Agency (USADA)'s Travis Tygart playing a major role, would form the centralized leadership the sport direly needs, particularly in the area of medication and anti-doping reform. But Tygart, who'd famously nailed Lance Armstrong, and USADA couldn't come to an agreement with HISA's governing board, and they appear to be out of the equation for the moment. That's led to many of these same journalists penning handwringing Chicken Little pieces.

Lost in these articles and editorials were the legitimate concerns–now being litigated–about HISA's constitutionality.

The sport does need to be enforced, but not, as Judge Amon said, “by unconstitutional means.” That should be a concern that any journalist can comprehend.

This is why it's important for those entities challenging HISA to have their days in the courts. It's to everyone's benefit to get judicial opinions on the matter as soon as possible one way or the other. Instead, prominent journalists and organizations have disparaged groups like the National HBPA that are challenging HISA, and in doing so, they seem to be supporting the one powerful segment of the racing industry, headed by The Jockey Club (TJC), which advocated heavily for HISA. The journalistic optics of this are awful.

By the way, TJC, in an amicus brief filed June 30, supported the unconstitutional NYRA ban on Baffert.

Some Issues

There are some, including constitutional scholars, who question if HISA potentially infringes on states' rights. Anyone who followed the Baffert hearing last week got a glimpse of the complex and intertwined relationships that exist between state regulatory agencies, racetracks, and participants, and it's these states' rights issues, for example, that put Texas into the fray and add heft to the National HBPA's suit.

Three years ago, in a column from Feb. 7, 2019 titled “Issues With the Integrity Act,” I presaged some of these constitutional concerns, citing the Supreme Court's landmark decision from May of 2018 that held the Professional and Amateur Sports Protection Act (PASPA) was unconstitutional. I wrote: “A central tenet to this decision was something called the 'anticommandeering principle' of the Tenth Amendment, which was previously established in the Supreme Court decisions of New York v. United States and Printz v. United States, both of which were invoked” in the case.

Racing at Sam Houston | Coady

The court explained “anticommandeering” in the PASPA decision: “…conspicuously absent from the list of powers given to Congress is the power to issue direct orders to the governments of the States. The anticommandeering doctrine simply represents the recognition of this limit on congressional authority.”

Last Friday, the attorney general of Texas specifically addressed this exact issue in his motion, which states, in part: “HISA unconstitutionally commandeers the legislative and executive branches of state government and puts Congress in control of state branches of government in violation of the Tenth Amendment.”

As to specifics, the motion noted these points in part (“Authority” here is the private nonprofit corporation–Horseracing Integrity and Safety Authority–established by HISA):

HISA requires Texas and the Texas Racing Commission (TRC) to cooperate and share information with the Authority; forces them to remit taxes and fees to fund the Authority or lose the ability to collect taxes and fees for their own anti-doping, medication-control, and racetrack-safety programs; and preempts some of Texas's laws and regulations.
If the State of Texas refuses to assess, collect, and remit fees to the Authority, HISA strips from Texas its right to “impose or collect from any person a fee or tax relating to anti-doping and medication control or racetrack safety matters for covered horseraces.”
HISA requires Texas “law enforcement authorities” to “cooperate and share information” with the Authority whenever a person's conduct may violate both a rule of the Authority and Texas law. HISA § 1211(b), 134 Stat. at 3275. HISA thus forces the State of Texas to spend time and resources to help the Authority carry out a federal regulatory program.
HISA preempts state laws and regulations on which Texans and the regulated industry have long relied to ensure the safety and integrity of horseracing.

These are valid concerns, and no amount of back and forth bickering between TJC lawyers, pro-HISA journalists, and other HISA supporters, versus those bringing the suits opposing HISA, will amount to anything but hot air until the courts decide.

So, why don't we sit back, chill, and let the judicial process take place?

Constitutionality, after all, matters.

Sid Fernando is president and CEO of Werk Thoroughbred Consultants, Inc., originator of the Werk Nick Rating and eNicks.

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