horseracing integrity and safety act | Horse Racing Free Tips

Feds Slam Alleged Dopers’ Assertion That HISA Creates Loophole

Prosecutors in the racehorse doping conspiracy case that ensnared 29 racetrackers, veterinarians and pharmaceutical brokers one year ago tried to convince a federal judge Friday that recent motions made by some of the defendants to dismiss drug alteration and misbranding charges are “without merit” and represent “an effort to invent a statutory limitation where none exists.”

The government's memorandum of law filed Mar. 5 in United States District Court (Southern District of New York) addresses a number of alleged legal flaws in the defendants' motions to dismiss, including several that prosecutors state would be more appropriately argued when the case goes to trial, not before it.

The defendants' motions, prosecutors allege, “do not actually seek the dismissal of the Indictment, but are more accurately described as premature motions regarding the sufficiency of the Government's evidence to be presented at trial…. The Second Circuit makes clear that a challenge to whether a statutory element has been satisfied is a matter for trial.”

The government's filing continues: “Defendants Seth Fishman, Lisa Giannelli, Jordan Fishman, Rick Dane, Jr., Christopher Oakes, Jorge Navarro, and Erica Garcia each ask that this Court insert novel, unsupported, and self-serving language into the text of [federal drug laws] in an effort to avoid felony liability for their illegal misbranding conspiracies.” The memo notes that a dismissal motion filed by defendant Michael Tannuzzo on different grounds should also not be granted.

The filing takes aim at the defendants' creative assertion that government prosecutors are overstepping their legal boundary by bringing charges under the applicable federal statute–the Food Drug and Cosmetic Act (FDCA)–when instead, the defendants argue, the case should instead fall under the authority of the Federal Trade Commission (FTC).

Back on Feb. 5, the defendants made the somewhat surprising legal argument that the Horseracing Integrity and Safety Act of 2020 (HISA)–which was signed into law a full nine months after the arrests were made–allegedly gives “plenary authority,” or absolute regulatory power, to the FTC in all federal matters pertaining to horse racing.

The government's Mar. 5 filing laced into that assertion: “The defendants' respective discussions of the passage of what is commonly referred to as [HISA] in the Fishman Motion and the Oakes Motion shed no light on the purpose or application of the FDCA. That is because the 116th Congress's passage of the HISA in 2020 has no bearing upon the intent of the 75th Congress's passage of the FDCA in 1938, and no implication for the plain language of the FDCA's provisions criminalizing misbranding and adulteration of animal drugs.

“As an initial matter, the Supreme Court disfavors reliance on subsequent legislative history in assessing the language and meaning of prior statutes,” the government's filing continues. “In particular, while 'subsequent legislation can of course alter the meaning of an existing law for the future' and 'can even alter the past operation of an existing law' (constitutional objections aside) if it makes that retroactive operation clear…it cannot inferentially amend the purpose behind passage of a prior statute, as defendants wish.

“The dangers of such post-hoc analysis are plain here. Congress did not–in either the FDCA or the HISA–indicate its intent either to acknowledge or create a 'racehorse industry' exception to the criminal prohibition against the distribution of adulterated and misbranded drugs with the intent to defraud or mislead in the FDCA, nor did it so indicate with respect to any other federal criminal law.

“The defendants' arguments in this respect reflect what seems to be a purposeful misreading of both the HISA and the charges against them: the defendants are not charged with violating state racing anti-doping rules and regulations, for which no federal analogue existed prior to the passage of the HISA; they are charged with felony misbranding and adulteration of drugs in interstate commerce in violation of the FDCA. No interpretative gymnastics are required to 'make sense' of one statute in light of the other.”

The government's filing sums up: “The HISA contains no criminal penalties because Congress determined sufficient criminal penalties were already provided for in existing federal criminal laws, laws which the HISA expressly does not modify. Ultimately, though, no reading of the Congressional tea leaves is required. There is no contradiction between the FDCA and the HISA, and no retrospective ambiguity in the text of the former arises from the text of the latter.”

Other counts of the government's case against the alleged dopers are not affected by this recent series of motion to dismiss, and trials are expected to begin in the second half of 2021. But one defendant, Scott Robinson, who has already pleaded guilty to conspiring to unlawfully distribute adulterated and misbranded drugs for the purpose of doping racehorses, has a sentencing hearing scheduled Mar. 9.

The multi-state simultaneous sting netted the high-profile arrests of trainers Navarro and the 2019 GI Kentucky Derby-disqualified trainer Jason Servis, plus a vast network of co-conspirators who allegedly manufactured, mislabeled, rebranded, distributed and administered PEDs to racehorses all across America and in international races.

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Hunter Rankin Named CDI Senior Director of Racing

Hunter Rankin has been hired as Senior Director of Racing for Churchill Downs Incorporated, CDI announced Tuesday. The role was recently vacated following Mike Ziegler's promotion to General Manager of Churchill Downs Racetrack in December 2020.

As CDI's Senior Director of Racing, Rankin will act as a representative and liaison to the U.S. Thoroughbred racing and breeding industry and focus on the implementation of standards and processes outlined in the Horseracing Integrity and Safety Act (“HISA”) across all of CDI's racing properties.

“Hunter brings to this role a breadth of relationships he has developed with key stakeholder groups within the racing and breeding industries,” said Bill Mudd, President and Chief Operating Officer of CDI. “His keen familiarity with HISA will help lead the Company and its racing assets into a successful future within a continuously-changing and evolving industry.”

Prior to this role, Rankin was the President of Sagamore Farm, where he oversaw all farm and Sagamore Racing operations while also building Sagamore Farm as a hospitality asset. He previously served as Executive Vice President of Sagamore Development (now known as Weller Development) and as a Partner at Sterling Thompson Company, where he managed commercial insurance profiles for large real estate, construction and equine businesses.

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Mattress Mack: ‘Threats Of Fraud Are Real, Whether The Fraud Is Real Or Not’

Asked what he would like to change about the horse racing industry, Thoroughbred owner James “Mattress Mack” McIngvale told Thoroughbred Racing Commentary that he'd like to see a sport with zero tolerance for performance-enhancing drugs.

“Threats of fraud are real, whether the fraud is real or not, just like this last presidential election,” McIngvale told TRC. “Half the population doesn't believe in the results. So, horse racing can't be in that same boat. Cannot go there. It's no fun when you've got no shot from the get-go.”

McIngvale pointed to the newly-signed federal Horseracing Integrity and Safety Act as a step in the right direction.

“[HISA], it's very good, just has to be enforced,” he said. “People need to run these horses on hay, oats and water, just like we ran Runhappy. It makes the horses happier. It makes the betting more transparent. And the fans don't think they're an outsider looking in.”

Read more at the Thoroughbred Racing Commentary.

The post Mattress Mack: ‘Threats Of Fraud Are Real, Whether The Fraud Is Real Or Not’ appeared first on Horse Racing News | Paulick Report.

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Writers’ Room Exclusive: USADA CEO Travis Tygart Explains How His Anti-Doping Team Will Clean Up Racing

Not too long ago, Lance Armstrong was revered as an American hero. The winner of seven straight Tour de France titles, Armstrong brought the sport of cycling into the mainstream and the story of his unprecedented success after recovering from testicular cancer inspired athletes everywhere. But, as the public later found out, it was all built on a lie.

Armstrong was a cheater, and his extensive involvement in an explosive doping scandal tarnished his legacy forever, stripping him of nearly all of his fraudulently-gained athletic accomplishments. The revelations from that scandal rocked the sports world and marked one of the most staggering falls from grace in recent memory. And it likely wouldn't have happened without the United States Anti-Doping Agency and its CEO, Travis Tygart.

Racing has suffered a fall from grace of its own in the past few years. Once a staple of American culture, the game's public support has steadily waned since its peak in the mid-20th century. But two massive scandals, one involving the spate of fatal breakdowns at Santa Anita in 2019, the other a bombshell series of FBI indictments alleging reprehensible and widespread drugging of horses that came out last March, plunged the sport into an existential crisis. These tragic public relations nightmares finally shook racing out of the inert fog it had operated under for far too long, and presented a crossroads: either clean up your business, or have it all come crashing down once and for all.

Enter Travis Tygart.

Late last year, the United States Congress, within an omnibus spending bill that included aid for coronavirus relief, passed the Horseracing Integrity and Safety Act. It is a plainly groundbreaking piece of legislation for racing, but its most notable provision is that drug enforcement, which has frankly been a running joke in the sport for decades, will soon fall under the purview of USADA and Tygart, arguably the most respected anti-doping authorities in the world.

So what, exactly, does that mean for the future of racing and how it will operate in the new HISA era? In his first public interview since USADA was tasked with an entirely new sport to regulate, Tygart sat down with the crew of the TDN Writers' Room podcast presented by Keeneland Wednesday. Calling in via Zoom as the Green Group Guest of the Week, Tygart participated in an expansive, candid, illuminating discussion on the transformation we should expect to see in the coming years as he and his crew take the regulatory reins.

“It's obviously a huge responsibility, but one that we're fully ready to embrace to learn the nuts and bolts of the industry that we don't know,” Tygart, who grew up near Ocala, said about USADA entering a new domain in racing. “We're honored to be part of it. We feel like it's a tremendous privilege. We recognize that we're going to have to work every day and every night to prove that we're the right organization for this. Cheating, honesty, ethics, and the rule of sport are the same across all sports. So while some might want to say there's a difference between equine anti-doping and medication control programs and what happens in humans, the mentality of cheating and trying to get an advantage against the rules, is the same. So we're really looking forward to putting in a gold standard program that people in the industry can have a lot of satisfaction and pride in, that it's being done at the highest levels, with an equal opportunity to win playing by the rules, which is all any athlete–whether you're a trainer, owner of a horse or a human athlete–can ask for.”

Tygart was invited to speak at the 2012 The Jockey Club Round Table, soon after the Armstrong scandal broke, where he was first introduced to the flimsy anti-doping rules that have proved so inefficient for the sport in America.

“I really started looking at the policies around anti-doping and medication control within the industry and they were just completely antiquated,” he recalled. “They were years behind what the human world, as well as the equine and Thoroughbred horse racing industry around the world had done as far as uniform policies. Other places don't have 38 different racing jurisdictions run by the states, with frequently conflicted people that have an interest in the outcome without transparency, without good quality testing, without laboratory accreditation that is uniform. It actually reminded me of, and I drew the comparison to, what the Olympic world looked like prior to us coming into existence. So having a uniform policy, where you can have confidence that when a horse runs in California, it's going to be running under the same rules and allowances and free of drugs as in Kentucky and in New York too, is going to be a game changer I think, right out of the gate.”

Tygart then explained in detail the process that USADA has put in place for human sports, which it will try to replicate in racing. He outlined two keys to its efficacy in particular: getting ahead of new drugs so that trainers can't just move from doping agent to doping agent before regulators catch up, and a tip line from affected parties in the industry.

“I think it's really important that we begin the education with the industry on this, and I always get the question,'Well, how's the testing going to be different?'” he said. “Just to look at testing is, again, an antiquated, old way of looking at modern anti-doping. How you professionalize and ensure that the athletes' rights and their health and safety are going to be protected, it has to start with education. That's going to be uniform, education about the rules across the country. It's going to have to have a research component involved to ensure that things that might not be tested for today in a robust way can be tested for. Any new drugs that are coming out that would tempt trainers or owners to give their horses, for example, are going to also be able to be detected. Then you also have to have a results management process, because we know the science is limited. It's a complex matrix looking at some of these drugs, some that are endogenous or natural to a human body or a horse body. So, distinguishing what's synthetic versus what's endogenous, is sometimes a difficult thing. You have to get that right from a scientific standpoint. That means you have to also have an investigative and an intelligence gathering model.

“We have a whistleblower line. We're the first to say it takes a team to be successful. So, make the call. Last year in our human world, we had close to 500 tips to our whistleblower line. We have a robust internal process where we investigate each and every one of those. When we direct tests off of that information, we have close to a 22% positivity return, clearly indicating that when the information comes in, it's handled appropriately, it leads to detection and that feeds what we're ultimately after, which is deterrence. We don't want people to cheat, but if it's too easy to get away with, and there's no consequence if you get caught, then people will take advantage of that. That's what we have to stop.”

Tygart undoubtedly faced an avalanche of institutional pushback from the cycling powers that be when he and USADA were working to uncover Armstrong's doping. He reportedly received death threats during the investigation and had to have additional security provided for him by the FBI. Asked about what kind of resistance he expects from people in racing, he said he has been encouraged by the industry's response thus far, and noted that there will be an adjustment period for those currently breaking the rules to fall in line.

“We've had a lot of interaction over the last eight-plus years with wonderful people in the industry, trainers, owners, breeders, all sides of it, who have asked really tough questions and really good questions, who have embraced the effort,” he said. “The deaths out in California, and then the indictments, I think created this perfect storm that finally loosened some of the entrenched positions, so I think we feel very good that the industry wants this to happen for the most part. There will obviously be those who like the status quo, because it's been very profitable for them. They're eventually going to either be weeded out, or change their behavior. They'll be given a fair opportunity. The rules will change and the enforcement is going to change, but you'll be given adequate time to change behavior in order to comply with those new rules and prove that you can win the right way.”

Elsewhere on Wednesday's podcast, the writers previewed a strong holiday weekend racing lineup. Then, in the West Point Thoroughbreds news segment, they analyzed the continuing positive handle trends and the passage of a historical horse racing reinstatement bill in the Kentucky Senate. Click here to watch the podcast; click here for the audio-only version.

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