Days after the publication of stewards' rulings for five levamisole positives, counsel for trainer Joe Sharp says Sharp will be appealing those rulings. Attorney Clark Brewster told the Paulick Report Wednesday that the stewards erred when they wrote a series of decisions declaring the drug to be a Class B substance according to Kentucky's regulations.
“I found it to be extraordinarily unfair and damaging to Joe,” Brewster said. “It's just the intransigence of the stewards not having the courage to recognize the truth and to say, 'Ok, we're sorry about that. Let's get it right.'”
Levamisole is approved by the FDA for use in cattle, sheep, and goats as a dewormer. Brewster said Sharp had been advised to use it as a dewormer for his stable as part of an effort to switch between different anti-parasitic products. He purchased the product over the counter at Tractor Supply.
Managers and trainers have been advised for years not to use the same deworming products too frequently because there is a growing drug resistance among the most common parasites impacting horses. Most veterinarians have discouraged dewormer use according to schedule and instead suggest deworming based on fecal egg counts. The levamisole product used by Sharp came in a powder form and was mixed with water and given orally. Brewster said Sharp preferred this administration because he felt his horses got more complete doses of the drug than from traditional paste dewormers.
Sharp was hit with the levamisole positives in Kentucky around the same time he encountered issues with it in Louisiana, where eight horses were disqualified for post-race positives for the substance between Dec. 1 and Dec. 28, 2019. Sharp was later fined $1,000 for each violation there but was not issued a suspension. Louisiana regulates medication based on guidelines from the Association of Racing Commissioners International, which considers levamisole a Class 2 drug with a B penalty class. ARCI's schematic requires a minimum 15-day suspension and $500 fine for the first violation in the B penalty class.
Kentucky stewards ruled earlier this week to issue a $500 fine for each Kentucky positive and a 30-day suspension to be served concurrent for all five violations. The ruling cited mitigating circumstances, pointing out that he hadn't been notified of the first positive when the subsequent ones occurred.
Kentucky does not follow ARCI's classification guidance for medications and penalties, although there are many similarities between the two.
An important difference to Brewster is the history of changes of levamisole's classification. At one point, the drug was considered a Class A drug (the most serious category) and was later made a Class B. Then, in 2015, commissioners for the Kentucky Horse Racing Commission unanimously agreed to remove levamisole from the drug classification scheme altogether after they detangled the association between levamisole and another drug called aminorex. Aminorex is a stimulant which has the potential for performance enhancement and was the primary substance of concern, they concluded. Initially it had been unclear whether one was a sign that the other had been administered, but Brewster said it's now generally accepted that levamisole can metabolize into aminorex, but not the other way around.
(Read more about the challenges of regulating levamisole and aminorex in this 2018 feature.)
There is a provision in Kentucky's regulations allowing for some flexibility beyond the drug classification chart that's in the states regulations. If a substance comes up in a post-race test that isn't rated on the drug schedule — particularly a new designer drug — the commission can establish an appropriate classification after consulting with ARCI or the Racing Medication and Testing Consortium and call the positive.
But Brewster said this provision shouldn't allow the commission to declassify a drug, only to have stewards call it by its old classification and penalty years later.
“What about Panacur or ivermectin? The horsemen rely on the commission to tell them what they can and can't use. Why couldn't this man rely on what the commission tells him?” said Brewster. “I certainly believe if there's cheating going on or something to gain an advantage or mask pain when a horse shouldn't be running, let's get the classification schedule right, let's take action and police the sport in the most rigorous and fair way possible. This is a situation where somebody's made a terrible mistake and it's really impacted the trainer and they don't have the courage to retreat and do the right thing.”
He also said he notified the stewards of all this at the time of Sharp's hearing in December 2020 and was frustrated to see the ruling state levamisole as a Class B violation anyway. He questioned whether the stewards realized the drug had been delisted five years before.
“This is truly beyond the pale of regulation,” he said. “[The positives were] all over the news. Joe couldn't get stalls at Fair Grounds for a while. People pulled their horses, including one that ran in the Kentucky Derby (Art Collector). He was completely pilloried in the press, all on the basis that the stewards just didn't read the list.”
If the commission wanted to add levamisole back onto the drug classification schedule, Brewster believes the regulatory body should have gone through the usual rule-making process to do so.
“If that's the case, wouldn't we have an opportunity to say why it shouldn't be listed?” he said. “Wouldn't it be listed at a public hearing in the same fashion where it was delisted? But they just quietly wouldn't respond.”
The Kentucky Horse Racing Commission declined comment on Brewster's arguments, citing a policy of not commenting on active cases.
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