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Irwin: Robust Investigative Force Critical For HISA To Effectively Combat Cheating

The Horseracing Integrity and Safety Authority (HISA) is not scheduled to begin operations until July of next year, but with release of the initial guidelines issued for public consumption last week and any number of Op/Ed pieces appearing in industry trade publications, the direction of the Authority that will steer the ship seems to be given plenty of helpful hints for its future navigation.

As the one who got the ball rolling in a 2004 Op/Ed in The Blood-Horse by urging industry members to consider a way of hiring the U.S. Anti-Doping Agency to oversee drugs in horseracing, I must at this early juncture in the start-up of the Authority register my fears regarding the ultimate success of the new entity and its potentially sweeping changes.

Germination for wishing to get USADA involved in the struggle to rid cheaters from the game was to use CEO Travis Tygart and his team to devise a plan to form an investigative unit capable of discovering through traditional and new-wave policing methods which designer and human drugs were being used to tilt the playing field in North American racing.

If the world of international sport had learned one thing from the 2002 Bay Area Laboratory Co-operative (BALCO) it was that testing was best used not to apprehend suspects but to confirm that they were cheating. The gold standard in catching the crooks was by finding the actual illegal substances first, then developing a test and using that test in the future to nail the bad guys. Testing without knowing what one was testing for was like trying to find a needle in a haystack.

Good old-fashioned cop grunt work and sophisticated FBI-style surveillance is required for the best results. In the eyes of those individuals who formed and drove the Water Hay Oats Alliance, it was foremost in mind that Tygart would use his agency's skills to offer relief to racehorse owners who played the game straight and true.

However, other initiatives, introduced by other stakeholders with alternative agendas, have gotten in the way and now threaten to derail the Authority from their original appointed rounds. And adding further insult to injury, everybody with an agenda is making noises about the Authority widening their sphere of influence by tackling such areas as pari-mutuel wagering.

The last thing HISA needs is to be accused of overreach by encompassing an agenda that goes too far afield from its original mandate. HISA was never envisioned as a so-called “league office” or end-all and be-all to govern the entirety of racing.

HISA is basically divided into two aspects of racing: integrity (preventing cheating) and safety (protecting the horse). While I am extremely interested in protecting the welfare of racehorses, I was personally disappointed in its inclusion in the final legislation, as I thought it could be handled better outside the confines of the law and because it detracted from the focus on cheating with drugs.

I daresay that very well may have been the intention of those proposing and supporting the safety element of the legislation. But I fully understand that with any sort of seminal legislation there must always be compromise and I am positive that without the safety aspect, Churchill Downs would never have been able to use its influence to convince Kentucky Sen. Mitch McConnell to back the bill.

In reviewing the Authority's releases so far and in reading reports in the media as well as interviews with key members of the Authority, it seems likely to me that testing for illegal substances is being given too much weight, as opposed to investigations. If this turns out to be the case, it would be a misguided, potentially detrimental and disheartening.

I understand why the “safety” advocates pressed so hard to have their initiative appear to be on an equal footing with “integrity.” By shifting the focus away from a single-minded attempt to zero in on drugs, the “safety” crowd hoped that racing would not be placed in a negative light. I get it. I do not agree with this gambit, but I understand it, especially where a major racetrack is concerned.

But unless the industry as a whole is ready to tackle cheating with drugs head on, the specter of altering the results of racing will never cease.

So this is my pitch to members of the Authority, no matter what side of the fence you are on, no matter how you managed to get your seat on the boards and committees and no matter what your agenda: please do all in your power to make sure that Travis Tygart is given adequate funding to carry on investigations that will yield the type of results those of us who have committed our lives to cleaning up the game can feel that all of our work has been worthwhile.

This message is not directed at USADA. It is not directed at Travis Tygart. It is directed at those individuals who may seek to over-fund their own aspects of the legislation.

Without a robust investigative force that is fully funded this entire initiative will fail and HISA will go the way of all other alphabet soup groups in racing. This is our one last chance to get horseracing right, correct the wrongs on the racetrack and clean up the game enough to present it as a viable sport to fans and horseplayers. We owe them that much.

Barry Irwin is the founder and CEO of Team Valor International

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View From the Eighth Pole: A New Sheriff In Town?

The Horseracing Integrity and Safety Authority is moving quickly to meet several deadlines before its federally mandated July 1, 2022, starting date to become the national regulatory agency for anti-doping and medication control for Thoroughbred racing in the United States.

Earlier this week, in consultation with the U.S. Anti-Doping Agency, led by CEO Travis Tygart and Dr. Tessa Muir, USADA's director of equine science, HISA published a draft set of definitions, medication protocols and a list of prohibited medications.

The public has an opportunity to comment and offer feedback on those proposed rules before they go to the Federal Trade Commission next month for a second round of public comment and eventual approval by the FTC.

It's clear, from the proposed rules and comments by Tygart and Muir in a series of media interviews, that racing is in for some significant changes.

Gone will be the good old boy community of racing commissioners with conflicts of interest involving some of the people they are regulating. It is hoped the cavalcade of attorneys appealing fines, suspensions and disqualifications on behalf of trainers will grind to a halt as well, with strict, understandable and loophole-free regulations in place when the transition to the Authority occurs next July.

But first, some caveats.

USADA has yet to sign a contract with the Authority as the enforcement agency for when HISA goes into effect. Tygart and Muir have been instrumental in meeting with HISA committees and staff in developing the rules, and Tygart said USADA is ready to become the enforcement agency IF the final regulations approved by the FTC are “good rules that we can stand by.”

In other words, Tygart is not going to risk USADA's brand or his own good name on a mission if it is hijacked by people who are successful in watering down the rules.

There are also the lawsuits by horsemen's organizations in opposition to the federal legislation that created the Authority. These have yet to be resolved in court. Tygart calls them obstructionists who hope to delay implementation and cause the Authority to burn through limited financial resources.

“We fully anticipate those groups or individuals who have always been opposed to a new uniform policy being in place and independent, robust enforcement of those policies, that they're going to continue to try and obstruct it at every turn,” Tygart said.

If the legal challenges are defeated and USADA becomes the enforcement agency, this will be a different, cleaner game played on a more level field.

For starters, no medications will be permitted by statute for 48 hours prior to race day. A robust out-of-competition testing program will be phased in with “whereabouts” requirements for all horses registered with the Authority. That means if horses are removed from a racetrack stable area, a trainer must notify the Authority where that horse is going so that out of competition testing can be conducted. Violations of the whereabouts rule will be dealt with severely.

So will positive tests for prohibited substances that are now dealt with in many states with a slap on the wrist. For example, primary substances – those that should not be in a horse's system at any time – found in post-race or out-of-competition samples may result in suspensions of up to two years. Included in that group are anabolic steroids, blood-doping agents and clenbuterol.

Non-steroidal anti-inflammatories would fall under secondary substance rules that can be met with a 30-day suspension and fine. However, trainers who pick up four of those violations over a five-year period may be suspended up to two years.

And any positive drug test will result in automatic disqualification of that horse from a race.

“For the integrity of racing from the results standpoint, the disqualification of the horse is automatic,” said Muir. “We would take into consideration any mitigating circumstances, with respect to the fine or suspension.”

The days of Bute overages being looked upon as minor violations akin to a parking ticket will be over. Trainers who have been willing to take an edge or have sloppy medication oversight will need to clean up their acts.

A key element of HISA's anti-doping program will be intelligence and investigations that result in “non-analytical” cases where the evidence is something other than a positive drug test.

“The Navarro indictment showed that they were using things they know or believe not to be detectable by current testing methods,” Tygart said. “So if you say you have to have a positive test to be held accountable, you've just given a license to people to go use things there aren't tests for, because science is limited to a certain extent.”

Tygart and Muir both believe whistleblowers will be an important part of the program and said USADA has been receiving tips on wrongdoing for several years since the agency was first mentioned as part of the federal legislation. The draft regulations include language protecting whistleblowers and charging anyone who intimidates a whistleblower.

“The principle there is it takes a community of people who benefit from having good rules that protect their rights,” Tygart said. “Hopefully they will trust whoever the enforcement agency is. If it's us, we will work hard to gain that trust like we have in our human sports to bring forward information and then act appropriately based on that information.”

Long delays in the resolution of cases is another problem the current system has permitted through appeals to the commission and the civil courts. Under HISA, all “covered persons” (including trainers) will need to register with the Authority and in so doing agree to the rules, including an arbitration process that Tygart said has worked well with human athletes. USADA enforces medication rules for Olympic athletes and UFC fighters, among others.

“There are so many loopholes in how the current system works and (trainers and their attorneys) can win,” Tygart said. “Part of this process is to shut the legal, technical loopholes that people can exploit. My guess is a lot of the defense counsels out there who have made a living out of trying those cases are going to be frustrated because they are not going to win many cases, as they shouldn't. Justice should be served, and we don't look at that as a win or a loss.”

As such, under the proposed rules, if a trainer and USADA do not come to a mutual agreement on a resolution and sanctions for any violations, the case goes to an impartial arbitrator or independent steward panel, to determine an outcome.

“We resolve 95% or more of our cases in the human program (without going to arbitration),” Tygart said. “That's historically true because people know that if you break the rule, we're going to be fair in the ultimate consequence and take into consideration the individual facts to get to a fair outcome. People recognize that if you do something wrong, the best thing that you can do, honestly, is to take responsibility for it and not waste your time or their time to get to the inevitable. … People are willing to forgive and move on. What people don't like is those who make excuses or continue to lie or try to cover up their doping, and I think that principle will play very well here because the rules are not going to allow people to exploit them in the way they are currently being exploited.”

Tygart added, “When you sign up to be a 'covered person,' you agree to the rules of the game. If you don't like the rules, you don't have to play.”

Racing has needed a new sheriff for some time. It may finally have found one.

That's my view from the eighth pole

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Friday Show Presented By Woodbine: Looking Back At Breeders’ Cup, Ahead To HISA

What are the takeaways from the embarrassing mistakes made at the Breeders' Cup world championships' Future Stars Friday program when Modern Games was removed from wagering pools and then allowed to run for purse money only in the Grade 1 Juvenile Turf at the Del Mar Thoroughbred Club in Del Mar, Calif., on Nov. 5?

Was this simply a human error or something compounded by ill-preparedness, faulty communications and regulations not in step with modern technology?

To help answer some of those questions, Pat Cummings of the Thoroughbred Idea Foundation joins publisher Ray Paulick and editor-in-chief Natalie Voss in this week's edition of the Friday Show to discuss what could have been done differently and would should be done going forward to avoid a similar occurrence. The mistake had a multi-million impact on horseplayers.

The trio also discuss the just-released draft of anti-doping and medication control rules from the Horseracing Integrity and Safety Authority and the U.S. Anti-Doping Agency. How will medication policies differ under the Authority, which is scheduled to be active by July 1, 2022?

The Woodbine Star of the Week is the ageless Pink Lloyd, the ageless wonder who won his 25th career stakes race last weekend at the grand old age of 9.

Watch this week's Friday Show, presented by Woodbine, below:

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HISA Publishes Initial Draft Of Proposed Anti-Doping, Medication Control Rules

The Horseracing Integrity and Safety Authority's (the Authority) Standing Advisory Committees, comprised of experts from inside and outside the thoroughbred racing industry, and the independent U.S. Anti-Doping Agency (USADA), have published initial drafts of proposed rules on hisaus.org for public comment.

As prescribed by the Horseracing Integrity and Safety Act of 2020 (HISA), USADA has led the drafting process for the Anti-Doping and Medication Control Program. Three of the six documents pertaining to the Anti-Doping and Medication Control Program, including the proposed Equine Protocol, Prohibited List and Definitions, have been posted for public comment. The remaining documents, which include Equine Arbitration Procedures, Testing and Investigation Standards, and Standards for Laboratories and Accreditation will be published over the next two weeks.

In addition, and separate from USADA's work, the Racetrack Safety Program, which is made up of expanded veterinary exam protocols, enhanced racing and training requirements, minimum standards for surface maintenance and testing, and uniform reporting requirements has also been posted to the Authority's website for public review.

USADA and the Advisory Committees will review and incorporate relevant public feedback on the recommendations and submit them to the Authority's Board of Directors for approval. Following the Board approval process, the Authority will present its final proposed rules to the Federal Trade Commission (FTC) in early December. This will then initiate a formal notice and comment rule-making process during which stakeholders and the general public may once again weigh in by submitting comments for a 60-day period, after which the FTC will publish final regulations.

“We are honored to be involved at this stage to help draft and ultimately finalize gold-standard rules on anti-doping and medication control for the equine industry,” said USADA CEO Travis T. Tygart. “We are excited with where this process is headed and with proposed rules being published for two additional rounds of public feedback.”

“The rulemaking process is still underway, and we encourage experts, other industry stakeholders, racing fans and the general public to review and comment through our website. Although the final decision on which regulations will be approved and implemented ultimately lies with the FTC, we want to ensure that any interested party has the opportunity to offer their perspective and input,” said Charles Scheeler, Chairman of the Authority's Board of Directors. “While the FTC will authorize the final set of rules for the official launch of the Authority in July 2022, it is the Authority's full intention to continue to work with the industry to evolve and improve the rules beyond that time.”

Please visit hisaus.org to view and weigh in on the proposed regulations and follow the Authority on Twitter and Facebook to keep up with the latest developments.

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