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They Ran a Lasix Free Breeders’ Cup…And Nothing Happened

The biggest story when it comes to the ban of Lasix in the Breeders' Cup is that there was no story. It was, simply, a non-factor.

A total of 148 horses competed in this year's Breeders' Cup, all of them running Lasix-free. There were no reports of any horses being in distress or bleeding from the nostrils. I did not hear of one trainer blaming a defeat on the ban of the diuretic. Nor did I hear of or read about any trainers saying they were passing the Breeders' Cup because Lasix wasn't being allowed.

And there was a record handle, so, clearly the bettors weren't reluctant to play races without Lasix.

Dr. Jeff Blea, the equine medical director for the California Horse Racing Board, said that he hadn't seen any signs of serious or obvious problems.

“There was no informal data collected to evaluate EIPH in horses that ran on Friday and Saturday,” he said in an email. “Anecdotally, I had surveyed several of the local attending veterinarians to get an understanding of what they were seeing endoscopically, specifically horses that bled a grade 3 or 4. I'm still waiting on responses from two practitioners, but it doesn't appear that it was a significant problem.

“One practitioner commented that grade 3/4 was noted in less than 10% of the horses he scoped. That said, I don't know his denominator. Others commented that they were surprised that they didn't observe severe episodes of EIPH. Furthermore, to my knowledge, I am not aware of any incidents of epistaxis on those two days.”

What happened to all the dire prognostications, that horsemen would suffer irreparable injury if the drug were taken away from them? That innumerable horses would no longer be able to race without it? That horses would bleed through the nostrils in full view of a horrified public? That it is inhumane to force horses to race without Lasix?

None of that has been proven to be true.

Lasix was banned on 2-year-olds in many jurisdictions in 2020. This year, it was also banned in graded stakes races at most of the top tier tracks. This year's Triple Crown was also contested Lasix-free, also without any problems. There is not much available so far in the way of data regarding how horses fared without Lasix, but, just as was the case with the Breeders' Cup, the number of serious problems appear to have been minimal. The sport simply adjusted and moved on.

By the time we got to the Breeders' Cup, the Lasix debate, once among the most controversial subjects in the game, had turned into a non-issue. Probably a lot of you never even took it into account that this Breeders' Cup would be contested without the diuretic. That's because the results of this year's Lasix-free races have proved that taking it away is, well, no big deal.

That's just it. Is Lasix really necessary? Trainers no longer give it just to bleeders but to every horse in their barn. It became a matter of not preventing bleeding but not allowing the competition to have an edge on you.

Racing is conducted everywhere else in the world without it and American racing had done just fine without it for one-hundred-plus years before its use became widespread in the 80s.

So why allow it? It's been evident for a long time that U.S. racing is too dependant on drugs, which has created an image problem for an industry that keeps on having to prove that it is on the level and that it is safe.

But my biggest problem with Lasix is that there is credible evidence that it is a major factor when it comes to why horses race so infrequently these days. In 1970, before Lasix had permeated racing's landscape, the average number of starts per runner per year was 10.22. It's now down to about 6.15.

The slide in the number of average starters per year began just about the same time that Lasix started being legalized across the country. That's not surprising since Lasix's is a diuretic that acts to dehydrate horses. When dehydrated, a race takes something extra out of a horse and they need more time to recover. That's just common sense.

That's anecdotal evidence that Lasix has contributed to a situation where we have the most unhealthy, least durable collection of horses ever seen in modern times.

The good news is that there are more changes on the horizon. When the Horseracing Safety and Integrity Act (HISA) goes into effect, the clock will start ticking on the drug. Under HISA, a racing commission that wants to prolong Lasix use can do so for three years. After the three-year period, a unanimous vote from HISA would be needed to continue the legal use of the drug. It's on its way out.

Yes, the sport has many problems that are a lot more serious than the use of Lasix. We've seen that with the rash of breakdowns at Santa Anita in 2019 and the 2020 indictments of trainers Jason Servis, Jorge Navarro and others on charges that they were using performance-enhancing drugs. That doesn't mean that the sport can't assess each issue independently and act. Getting rid of Lasix won't solve all the drug issues, but it's a step in the right direction and the right thing to do.

And horsemen, those who were predicting doomsday scenarios, can relax. They will do just fine without the drug. This year's Breeders' Cup proved just that.

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Taking Stock: Misbranding Case Doomed By Fed Error

Expeditiously I be on my Grizzly
Feds try to creep me somehow always miss me
–Mr. Fantastik, from the MF DOOM song “Anti-Matter” on the King Geedorah album “Take Me To Your Leader”

If you're not hip to the slang in the lyrics above, Mr. Fantastik is essentially saying that the Feds are after him while he's on his grind, but they can't quite get him. There's an implication in there that the Feds are incompetent, but that's more evident from Mr. Fantastik's delivery.

Trainer Murray Rojas can probably relate to that sentiment now, after a Supreme Court decision was handed down in her favor last week on the Monday before the Breeders' Cup races. It didn't get much publicity in the racing press, perhaps because of the anticipation of the Breeders' Cup, but it should have, because the decision may have ramifications for horse racing-related misbranding cases working their way through the judicial system. Also, the larger issues of “federal overreach” addressed in an amicus brief filed in support of her petition are in the playbook of conservative federal judges, and some of them may hear cases challenging the constitutionality of HISA (the federal Horseracing Integrity and Safety Act, which was signed into law almost a year ago and is meant to oversee the sport at a federally mandated level but is being challenged by the attorneys general of several red states and the National Horsemen's Benevolent and Protective Association {NHBPA}).

A Penn National-based trainer, Rojas had been convicted on 14 felony charges by a jury in federal court on June 30, 2017, for misbranding drugs and conspiracy to misbrand in violation of the Federal Food, Drug, and Cosmetic Act (FDCA), relating to the administering of drugs to horses in her care within 24 hours of races. That act alone was against the rules of racing in Pennsylvania.

The FBI had led a sweeping law enforcement investigation of trainers and personnel at Penn National, and others were prosecuted as well by the U.S. Attorney's Office of the Middle District of Pennsylvania, but Rojas's case was the icing on the cake. On May 16, 2019, Rojas was sentenced to 27 months in prison and two years of supervised release, plus a fine of $5,000–the most severe sentence handed down in this roundup.

Rojas convinced the sentencing judge to grant bail while mounting an appeal, but the U.S. Court of Appeals for the Third Circuit, on January 11 of this year, affirmed the district court conviction and sentence. Things looked bleak for Rojas at that point.

Rojas, however, fired off a Hail Mary pass. On May 13, she filed a petition for a writ of certiorari, or a hearing in the Supreme Court. The highest court grants only about 1% of petitioners a hearing, but Rojas got two important briefs of support to get hers.

Coady photo

One was the aforementioned amicus brief filed on June 17 by the American Conservative Union Foundation (ACUF), which bills itself as an organization that “opposes the increasing application of federal law to matters that are more appropriately addressed by state and local authorities.” ACUF, a nonprofit, is the fundraiser for the American Conservative Union (ACU), which hosts the Conservative Political Action Conference (CPAC).

Joining the ACUF on the brief was The Cato Institute, another organization advocating limited government.

Their brief essentially agreed with the Rojas petition that the lower courts in this case had blurred long-held distinctions in case law between the “dispensing” and “administering” of drugs. Rojas had been convicted by a jury that was instructed that both dispensing and administering amounted to the same thing, and this line of thought had been affirmed in the Third Circuit appeal that she'd lost. The dispensing or sale of drugs is federally regulated in interstate commerce in the FDCA, the brief noted, but the administering of drugs by a veterinarian or medical practitioner in the course of his practice is not. This is what Rojas, who wasn't dispensing drugs, had been arguing all along in fighting the federal charges against her, and it was the centerpiece of her petition.

The brief was a classic conservative treatise on federalism. It disparaged “the aggressive federal criminal prosecution…that historically has been left to state and local regulatory enforcement,” because the alleged crimes that took place were infractions of state law. The Feds, however, had tried to pigeonhole them through a “liberal” reading of FDCA, according to the brief, to fit federal felony laws.

Believe it or not, the second brief supporting Rojas came from the respondent, The United States, in a filing Sept. 17 by the Acting Solicitor General, an Acting Assistant Attorney General, and two Deptartment of Justice attorneys. Perhaps they were convinced by some of the arguments in the ACUF and Cato Institute brief, because they also agreed that misbranding did not occur in this case and Rojas's conviction should be vacated. All said and done, it was a stunning defeat for the Feds, although their brief appears to be constructed in a narrow manner applicable only to this case–perhaps because of the larger Southern District of New York (SDNY) case of misbranding pending against trainer Jason Servis.

Rojas filed a reply Oct. 6 addressing some of these specific concerns, plus larger conservative issues of federalism and states' rights. On Nov. 1, the Supreme Court granted the petition, vacated the judgment against Rojas, and remanded the case “for further consideration in light of the confession of error by the Solicitor General.”

Conservatives vs. Conservatives

Conservatives and libertarians came to Rojas's defense and flexed ideologies that resonated with a conservative court. Someone tweeted recently that racing is a right-wing industry, which may be going a bit too far, but it's probably safe to say that most of the stakeholders in the game are conservatives who would support concepts of federalism and states' rights, as well as vote for the same type of people advocated by organizations like ACUF and the Cato Institute. Yet two notable conservative factions, one led by The Jockey Club (TJC) and the other by the NHBPA, are on opposite sides of HISA, which brings federal heft into racing like never before.

This anomaly is essentially pitting racing people of the same overall political philosophy against each other at the same time as they're probably supporting the same people in political office or in the voting booths.

Both factions, for instance, likely would have supported Donald Trump's three appointments to the Supreme Court that have shifted it to the right.

It's only a matter of time before there's a collision between conservative principles of federalism and HISA. Those that support HISA are likely to end up at odds with high-powered and influential conservative intellectuals outside of racing like those that came to support the Rojas petition. And if a challenge to HISA were to get to the Supreme Court, opponents of it could possibly prevail. For instance, even before two of Trump's three appointees were on the Supreme Court, it ruled in its May 2018 decision that the Professional and Amateur Sports Protection Act (PASPA) was unconstitutional because the “anti-commandeering principle” of the 10th Amendment recognizes limitations of congressional authority over state governments, and there are parts to this that could possibly apply to HISA as well.

A few years ago, while writing in this space about one of the earlier versions of the bill that eventually became HISA, I wrote: “But if it did somehow become law, the constitutional challenges to it in court–certainly in the way it's now written–could set off another round of battles, and in the end, the industry would probably find itself exactly where it is now: battling itself.”

More specifically, I should have warned that it would be a battle of conservatives versus conservatives, and that's something to think about, because mostly liberal lawmakers supported the passage of HISA–it was co-sponsored by 206 Democrats in the House versus 55 Republicans–and liberal and progressive-minded people are mostly the ones behind groups that generally don't support racing.

I'm going to end this with another verse from “Anti-Matter,” this one from MF DOOM himself, because the last line is an apt warning:

Yeah, It's neither here nor there, black
Warfare in your ear, clack-clack-clack-clack-clack
What's that? You're hearing things! Tat-tat-tat-tat-tat
Be wearing your thinking hat

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

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‘Bullish On Thoroughbred Racing,’ New NTRA Chief Rooney Sets Sights On Washington

When the National Thoroughbred Racing Association board began its search for a new president and chief executive officer to replace Alex Waldrop, who announced his retirement earlier this year, it became obvious that it would be vital to find someone who knew his or her way around Washington, D.C.

That's why the hiring of former U.S. Rep. Tom Rooney to fill that role seems like a perfect fit and the decision to open a Washington office makes sense. Who knows the U.S. Capitol better than a former Member of Congress. Rooney brings the added value of coming from a family that is well known not only in sports as longtime owner of the NFL's Pittsburgh Steelers, but also in racing.

The Rooney family has owned several tracks over the years, including Yonkers Raceway in New York, and currently the Palm Beach Kennel Club, which has evolved into a card room and simulcast center after dog racing in Florida was killed via statewide referendum. Rooney is actively engaged in the Thoroughbred industry through his family's Shamrock Farm in Maryland, where he currently serves on the board of the Maryland Horse Breeders Association

Rooney, 50, is a native of Philadelphia who served five terms in the U.S. House of Representatives in Florida's Districts 16 and 17 that comprise an area bordering the Gulf Coast in the south-central portion of the state. Rooney was interviewed by Paulick Report publisher Ray Paulick.

When he was running for president, Joe Biden asked, “Why should you get a (tax) break for racehorses and not get a break for child care?” How would you answer that question?
Tax relief for child care costs supports our country's working families. It is the right thing to do. It's also the right thing to do to make sure that the tax code treats investments properly, especially when that investment is in an industry like ours that isn't well understood. Owning, raising, and training Thoroughbreds is the economic foundation of our industry, supporting thousands of family farms and open working space. The majority of breeding operations are small, local farms that are incredibly important to the economic health of their communities.

How important is preservation of the depreciation for racehorses and other tax benefits to the health of the industry? Is there any danger they could be taken away?
It's very important to make sure the tax law is an accurate reflection of the economics of this industry, and the current rule regarding depreciation is set to expire at the end of this year. This is something the NTRA is already focused on that will be a big priority for me out of the gate. Additionally, some of the tax relief that was included in the 2017 legislation will begin to sunset or change in other ways over the next few years and those could impact investment in racehorses. Our work to maintain or expand these provisions is at the top of our agenda.

Where does the racing industry stand with its political action committee? Is Horse PAC large enough to give the industry a chance to be heard by Members of Congress?
Whether people like it or not, campaign contributions are a big part of how our political system works. Horse PAC is vitally important to our efforts in Washington. Not only do we have to raise and distribute money, but I need to be at the table to go shoulder to shoulder with the other industries competing for legislation that benefits them.

What challenges do you see coming up in Washington, D.C., relative to the startup of the Horseracing Integrity and Safety Authority?
Change isn't always easy and, in this case, we are looking at implementing a new system of federal oversight. This is a substantial change, involving coordination among the FTC, the HISA Authority, USADA and industry stakeholders. It's going to take consensus and collaboration. We can't turn back here. The old system was not serving us well both practically and in terms of public perception.

What were your views on HISA (and previous attempts at similar legislation) during your years in Congress and what are they today?
I never got a chance to vote for HISA as I was already out of Congress when it passed, but I would have voted in support. In addition to the comprehensive reforms it enables, it also gives us a chance to show the public and government leaders that we are addressing fundamental safety issues and are headed in the right direction. We have to give HISA a chance to succeed.

The vision for the NTRA has evolved from a “league office” that at one time was operationally merged with the Breeders' Cup. Among other things, it incorporated marketing and promotion, broadcast rights, racing sponsorships, group purchasing and advocacy in Washington, D.C. What would you say are the NTRA's top priorities today?
I can't really speak to what happened 15-20 years ago. RIght now, the NTRA's top priority is to build on our track record at the federal level, to make sure our political leaders understand the important economic contributions our industry generates, that they appreciate our collective responsibility and commitment to the safety and welfare of our athletes.

New NTRA president and CEO Tom Rooney (center) presenting a trophy at the Maryland Million

Your family has been involved in the NFL for many years as owners of the Pittsburgh Steelers. What did the NFL do to become so popular over the last 30 or 40 years that horse racing failed to do?
The NFL and major network television were a perfect marriage. The irony is that in the early days of the Steelers, our family's racing operations provided the funding that kept the team alive.

I'm bullish on Thoroughbred racing. Even with the issues of the last few years, the sport has built a reservoir of goodwill with the public. Interest remains strong — the Kentucky Derby this year had higher ratings than the World Series, the Masters and the NBA Finals. A national survey of sports bettors this summer showed horse racing as their sixth favorite sport to bet. We were behind football, basketball, baseball, soccer and boxing but ahead of golf, hockey, tennis and several others.

How do you see sports betting on the competitive landscape? Is there any upside from it for horse racing?
It's here and it's only going to get bigger, so we need to view sports betting as an opportunity. This is a highly engaged audience of people who enjoy betting and many of them may not currently bet on racing. Thoroughbred racing is premier betting content that should be attractive to this audience. It is important that we integrate racing into sports betting platforms and it is encouraging that it is already happening with examples like FanDuel Racing and NYRA's partnership with BetMGM.

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Legendary Handicapper, Turf Writer Steve Crist Joins Writers’ Room

Revolutionary handicapper and racing writer Steve Crist has been out of a public eye after retiring five years ago, but still has as much passion and enthusiasm for racing as he's ever had, and Wednesday morning, he joined the TDN Writers' Room presented by Keeneland for an expansive discussion on a variety of industry issues. Calling in via Zoom as the Green Group Guest of the Week, Crist discussed his increasing involvement in the game from an ownership standpoint, racing's progress on detecting and punishing cheaters, the Bob Baffert saga of 2021 and much more.

Asked for his reaction to the FBI indictments of Jason Servis and Jorge Navarro and the potential enactment of the Horseracing Integrity and Safety Act, Crist said, “The Servis/Navarro stuff, I think every horseplayer knew that these guys were cheating. This was not exactly something you were shocked to learn; you knew what these guys were doing, with the routine form reversals and the accompanying floods of money on their horses. I'm delighted that racing finally went after actual cheaters, instead of continuing to dither about Lasix and accusing every prominent trainer who wins at 25% of cheating. These are two different things, and I hate to see racing having wasted so much time on issues like Lasix instead of going after real cheaters.”

Crist mainly spent his career as a horseplayer and writer, but now owns a handful of horses, and spoke about how that's changed his perspective on the game.

“I've got to say, it's been more fun than I expected,” he said. “It really is. There's a different kind of enjoyment and a different kind of rooting that goes on when it's your horses, I've thoroughly enjoyed that part of it. But I've also had my eyes even more opened to the fact that it's so difficult for people to stay in this game now. Unless you're a plutocrat or a super trainer, this industry had become very, very hard to make a living in. Our trainer, Phil Gleaves, retired at the end of the Saratoga meeting, in part because it's just so hard to make a go of it as a small stable these days. Hiring help, dealing with workman's comp, and all these other issues have made it really hard for smaller trainers to stay in business. That's not a healthy thing long term for the game. And I don't think we want to end up with 10 super stables and no small outfits in American racing. That's not going to be good.”

Elsewhere on the show, which is also sponsored by West Point Thoroughbreds, Legacy Bloodstock and Woodford Thoroughbreds, Joe Bianca and Bill Finley broke down the ramifications of Bob Baffert's loss in court Tuesday, reacted to the strong handle numbers thus far for 2021 and applauded Gulfstream for its suspensions of trainers for clenbuterol use. Click here to watch the podcast; click here for the audio-only version of find it on Apple Podcasts or Spotify.

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