Schoenthal was issued a provisional suspension after two of his horses, Prodigy Doll and Determined Driver, tested positive at Laurel on January 28 and February 9.

“I was informed today by HIWU that they took all of his evidence into consideration,” said HISA chief Lisa Lazarus, who said that the groom who took each horse in the paddock and an exercise rider in his barn both tested positive for meth, and that Schoenthal had already pre-emptively instituted a workplace program to warn employees about the dangers of environmental contamination.

“The HIWU team was really impressed with that,” said Lazarus. “What we've said was that if you made efforts to reduce your risk, that would mitigate your sanctions. That was essentially the rationale.”

Said Schoenthal, “I am pleased at the outcome. There were some very tenuous moments here in my week that were very trying for me, but I believed from the onset that common sense would dictate the outcome and I'd get a fair and equitable outcome, and I did.”

Schoenthal said that substance abuse on the backstretch was something that everyone in racing had to deal with. “I think the takeaway from my case, if it can serve to help others, is that you can't stop bad things from happening one hundred percent around your horses,” he said. “The onus is on us to be able to prove to HISA and HIWU that we did all that we could do to prevent this from happening and if you can prove that you did, I believe they're going to be fair with you.”

Schoenthal said that he had taken some valuable lessons away from the Jonathan Wong ruling, in February. Wong was suspended for two years and fined $25,000 after one of his horses tested positive for metformin. Had he not read the entire ruling, said Schoenthal, he would have made the same mistakes. “Obviously, as a concerned industry participant I've read every ruling and case that comes down the pike, and his ruling was a 50-page document that was posted on the website. I never met him, but I read his defenses, and it occurred to me if it were me, I'd have all the same defenses.”

“He took a polygraph test. I would have googled nearest polygraph expert and thought I was doing the right thing. He had a sworn affidavit saying his assistant told them not to pee in stalls. That wasn't good enough, and I would have done the same thing. I read that, digested it, and realized, `you know what? In the old regime, you would walk into the stewards' office and talk to a retired trainer or jockey who knew how the backstretch worked and were understanding with those things and believed you.' HIWU was given a set of rules they did not write. Their only their job is to enforce them. They are white-collar, smart, educated people, and come from a world where an employer has drug policies and HR policies. For the last 100 years, they have not been part of our world.”

“I sat down that weekend, and typed up a whole manual for my employees. Don't take your prescription medications at the barn, and if you have to, wash your hands. Don't pee in the stalls. Don't allow friends, families, and strangers to touch the horses. We bought some pizzas, and went through all of these things in English and Spanish, and had everyone sign the paper that they understood. We also put up signs that said don't pee in the stalls and tried to take a very proactive approach to the things that were in our control to mitigate the risk.”

Lazarus said that the manual and the meeting went a long way to prove that Schoenthal had taken steps to lessen his risk. Schoenthal said he called Alan Foreman right away, had everyone in the barn tested, and found the groom and the exercise rider tested positive for meth. “As such,” he said. “I could prove a clear path.”

“I have had a wonderful experience dealing with HIWU,” said Schoenthal. “They have been nothing but professional and helpful. I spoke with Lisa Lazarus and Ben Mosier several times. I told Lisa, `look, at the end of the day my employees tested positive for meth. I'm not trying to say here I deserve zero punishment and should be exonerated. I accept and admit that there is some part that my failures played in this.' I was prepared to take some days. The investigators who served me with the notice of the first positive were nice guys who treated me with respect and fairness. I do understand the rules are the rules and they're just enforcing the rules, but we still need to have some further conversation about what rules need to be changed. We need to get together as horsemen to see how we can make this better.”

In the end, said Schoenthal, his story should serve as a warning to others, just as Wong's did to him.

“This can happen to anybody,” he said. “There is nobody who is immune to a horse coming up positive. There's a lot of work to be done and I believe from talking to HISA that they are open to it. I was very grateful to HISA and HIWU, Lisa Lazarus, and their general counsel that they were very willing to listen to me.”

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The group will start in April and will convene monthly to provide feedback on the implementation and evolution of HISA's various regulations, including racetrack safety and anti-doping and medication regulations. Among this group of 16 are horsemen, veterinarians, jockeys, horseplayers, representatives from horsemen's groups, racing offices and racing syndicates. They will serve in 18-36 month terms to stagger changes in group composition.

Those selected were: Waqas Ahmed, deputy executive director of the Kentucky Horse Racing Commission (KRHC); Keith Asmussen, rider and eldest son of Steve Asmussen; Joe Bianca, ownership advisor for West Point Thoroughbreds and former editor/podcast host at the TDN; Marc Broady, executive director of the Maryland Thoroughbred Racetrack Operating Authority; Eric DeCoster, assistant racing secretary at Prairie Meadows and racing official at Oaklawn Park; Devon Dougherty, assistant trainer for Christophe Clement; Dr. Tatiana Fraguela, racetrack veterinarian based at Churchill Downs and Oaklawn Park and jockey Tyler Gaffalione.

Also selected were Jeffrey A. Matty, Jr., executive director of the Pennsylvania Thoroughbred Horsemen's Association at Parx; Katie Miranda, co-owner of HorseOlogy and owner of White Lilac 2-year-old Consignment; Tyler Peeples, handicapper and owner; Courtney Reid, senior director of racing and industry relations for Breeders' Cup Limited; trainer Lindsay Schultz; Brianne Sharp, marketing and research coordinator for Godolphin; Sam Houston track announcer and handicapper Nick Tammaro; and Najja Thompson, executive director of New York Thoroughbred Breeders, Inc. and a member on several various boards.

“Thank you to everyone who applied for the Next Generation Advisory Group,” said CEO Lisa Lazarus. “HISA remains dedicated to preserving our sport for generations to come, and the sheer number of applicants alone has been an incredible sign of support for a successful future. We are thrilled to have such diverse perspectives, vast experience and impressive qualifications across our industry advisory groups.”

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The program is set to commence in the second quarter of 2024 and will continue with a series of strategic implementations throughout 2024 and 2025.

“Medical emergency preparedness planning has become essential to any sport,” said SMC CEO and Director of Operations Michael Cendoma. “An effective response plan reflects a multifaceted approach that combines training and education, technological innovation, science and evidence-based practices, and collaboration. We look forward to working alongside HISA and its racetracks across the U.S. to implement best practices that will ensure swift and effective responses to medical emergencies.”

Through the partnership with SMC, HISA will help improve each racetrack's emergency preparedness by supporting the development of an emergency action plan (EAP) template, identifying weaknesses in any existing EAPs and providing an opportunity for tracks and first responders to collaborate further on how to prepare and train for, and respond efficiently to, emergencies.

The partnership with SMC is the latest in a series of steps undertaken by HISA toward promoting health and safety initiatives in U.S. Thoroughbred racing. This initiative aims to bring all tracks up to a best-practice standard through structured policy implementation.

“We are thrilled to be partnering with SMC in what represents a significant step forward in our commitment to the wellbeing of all racing participants,” said HISA CEO Lisa Lazarus. “By adopting a holistic and elevated approach to emergency preparedness, we aim to ensure all stakeholders are equipped to handle emergencies with skill and coordination. Together, we are working towards a safer sport for everyone involved.”

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“Our inaugural annual report reflects our journey toward a safer, fairer and more resilient future for horse racing,” said HISA CEO Lisa Lazarus. “The success of HISA's programs relies on steady partnership among the tracks, trainers, riders, owners, veterinarians and state regulators who comprise the sport. Only by working together can we make Thoroughbred racing safer for its equine and human athletes.”

The Annual Metrics Report provides stakeholders with key data collected in 2023 at 50 racetracks in 20 states as part of HISA's Racetrack Safety Program, which went into effect July 1, 2022.

Highlights of the report include: accreditation visits to 21 tracks last year; creation of a centralized online database of horses and people involved in the sport, enabling treatment records and other information to be accessed by racetracks and officials across the country; a racing participant registration, which as of Dec. 31, 2023, had registered approximately 33,000 Covered Persons, 55,000 Covered Horses and 1,000 veterinarians actively involved in the daily and specialized care of equine athletes.

Other highlights from the report:

Racetracks operating under HISA's rules reported 1.23 racing-related equine fatalities per 1,000 starts in 2023. That rate is down from the rate reported by The Jockey Club in its Equine Injury Database (EID) in 2022 (1.25 per 1,000 starts) and is lower than the national rate reported in The Jockey Club's 2023 EID (1.32 per 1,000 starts).

The Jockey Club's 2023 EID also shows that non-HISA tracks reported a rate of 1.63 racing-related equine fatalities per 1,000 starts.

In 2023, HISA reported 4.40 crop rule violations per 1,000 starts, which is down from 5.09 violations per 1,000 starts in 2022.

To read the complete report, click here.

The Horseracing Integrity & Welfare Unit (HIWU) is expected to release a separate annual report detailing metrics from the Anti-Doping and Medication Control (ADMC) Program soon.

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Isidro Paez was the freelance groom hired to care for the horse that day. In February, Paez had his license suspended for 90 days by the California Horse Racing Board (CHRB) for disorderly conduct “under the influence of Amphetamine and Methamphetamine” on Jan. 27, at Santa Anita.

According to the stewards' minutes of the hearing, Paez voluntarily provided a urine sample that day which resulted in a positive finding for both methamphetamine and amphetamine. In explanation, “Paez stated he snorted methamphetamine while attending a New Year's party on January 1, 2024,” the minutes state.

On March 3, Morfin was issued an interim suspension by the Horse Racing Integrity and Welfare Unit (HIWU) as a result of Wishtheyallcouldbe's positive post-race test for methamphetamine, a banned substance under the Horseracing Integrity and Safety Act (HISA).

Since then, Morfin has remained provisionally suspended while his case is being processed.

According to John Tyre, Morfin's attorney, because of Paez's chronicled history of methamphetamine use, he has reached an agreement with HIWU that on April 6, Morfin's suspension will be lifted after some 30 days. Crucially for this more lenient sanction, Morfin did not pursue a formal hearing, said Tyre.

The length of Morfin's suspension also reflects a recent shift by HIWU in applying lesser sanctions than in the past for violations stemming from common drugs of human abuse like cocaine and methamphetamine, in accordance with proposed rule changes pending approval by the Federal Trade Commission (FTC).

Rather than confront a possible two-year ban and $25,000 fine for a methamphetamine positive, say, trainers will face a maximum 60-day suspension and $5,000 fine under the proposed rules, if they are indeed approved.

In a note on HIWU's website, it states that the organization “has elected to stay all pending Anti-Doping and Medication Control (ADMC) Program cases whose potential periods of Ineligibility would be affected by these rule updates, including due to either the reduction of the applicable periods of Ineligibility or the removal of the automatic application of penalty points for certain violations.”

“[Morfin] will be back to training the first week of April. And then, that'll be the end of it,” said Tyre, who was quick to add that rampant substance abuse problems among backstretch employees–and its overlap with positive tests in racehorses–is an issue that's far from over, despite the proposed lessened sanctions.

“I've been doing criminal defense work for many, many years, and if it wasn't for methamphetamine, alcohol and marriage, I'd be broke,” said Tyre.

As such, the ultimate insurer rule that places the burden of responsibility solely on the trainer's shoulders is leading to decisions that don't always reflect the complicated nature of the problem, Tyre said. “HIWU and HISA need to conduct some kind of investigation to determine how widespread [substance abuse] is around the backside of the racetracks.”

Coady Photography

THE PROBLEM AND POSSIBLE SOLUTIONS

Tyre's suggestion hardly comes as a bolt from the blue.

The long hours, early mornings, sometimes poor pay and living conditions, coupled with the dangerous nature of backstretch work make drink and drugs something of an all-too convenient crutch–especially while blind eyes are turned in an industry where hard-drinking and hard-partying have long been worn as a badge of honor as much as a release from the grind.

Indeed, there's a reason so many exercise riders say they ride better after a drink, why so many shed-row ice machines have bottles of beer nestled in them, and why so many see the antidote to the dreaded four-a.m. alarm clock as an inhalable stimulant. Just look at the numbers.

Since HISA's ADMC program went into effect last year, there have already been 13 either pending or resolved cases for methamphetamine positives, and another two involving cocaine.

Darin Scharer is executive director of the Winners Foundation, a presence at every California track to provide information, support and referral services for backstretch employees and their families going though addiction issues.

Scharer said he was unable to estimate just how many backstretch workers have substance abuse problems. But he doesn't argue with the contention it's significant.

“We're not having the fentanyl problem or the heroin issues that other places have,” said Scharer, about California's backstretches. “But we definitely have a marijuana issue. And we definitely have a methamphetamine issue.”

Indeed, veteran California trainer Hector Palma was suspended for 81 days for a methamphetamine positive, a portion of that time after multiple grooms in his care tested positive for the drug. The positive occurred near the start of the ADMC program going into effect, before the new rules were proposed.

What Scharer bemoans is the lack of any unified approach to providing support to racing's phalanx of essential workers.

“Unfortunately it's only us, Kentucky and New York. That's the only three that I know of,” said Scharer, about the number of jurisdictions armed with substance abuse support programs like the Winners Foundation. “I would love to be involved in a program where we make this more uniform across the country.”

One key obstacle to meaningful movement in this arena is an ongoing cult of shame that surrounds the issue. “There's still a lot of stigma associated with people that have drug problems and mental health problems,” said Scharer. “For people accessing services, it's still a scary thing.”

Another reason appears to be more mercenary.

At a time when the industry grapples with a profound dearth of good, reliable help, there's a fear among some in the industry, said Scharer, that tackling the problem head-on could lead to an even more attenuated workforce. “Sometimes people don't want to know the truth of how bad it really is,” he said.

Though not everyone is as averse to such truth-telling. “I know that Richard Mandella tests everybody in his barn before they go work for him,” said Scharer. “He doesn't want anybody who works with his horses to be working under the influence.”

At the same time, some substance abuse rehabilitation programs offer a tantalizing answer to the industry's staffing woes.

“It could turn the backside upside down,” said Frank Taylor, director of new business development at Taylor Made Farms, about a joint venture he's helped build between Stable Recovery and the Taylor Made School of Horsemanship for men and women suffering substance abuse problems.

The partnership includes two halfway houses and a 12-step program, along with vocational rehab to teach those going through the 90-day course the basics of horsemanship. The idea is to provide them with an avenue towards meaningful employment–in the process, providing a new workforce source for the Thoroughbred industry.

Graduates of this program, said Taylor, have found work at a variety of key farms in the area including Coolmore, Darley and WinStar. “We've got about 10 farms that are currently working with us,” he said.

“If trainers started hiring these people, they would absolutely love it,” Taylor added. “It's just the right thing to do to help these people, give them an opportunity in life. Plus, we're putting them with the most therapeutic animal on earth.”

Taylor estimates upwards of 50 percent of backstretch employees have a potential substance abuse problem. And it's a topic Taylor knows well.

A recovering alcoholic, Taylor quit drinking a few years ago, which is when he visited the DV8 Kitchen, a Kentucky restaurant that provides employment to those in the early stages of substance abuse recovery.

DV8, said Taylor, proved the inspiration for the second chance venture he's built at Taylor Made. What's more, their program works.

“Generally, somebody goes into a 90-day program only about 15% of them stay sober to the end of the 90-days,” said Taylor. “We're running more like 85%. The reason is, they get completely out of their old environment and come out and work immediately.”

While the program is primarily geared towards those with little to no prior horse experience, they've taken on individuals from the racetrack–jockeys, trainers, even farm managers–who act as tutors, said Taylor.

“We'll have them helping the green guys coming in,” said Taylor, who explained how they adapt their program to the skill sets of the individual.

“Folks from the track, they're going to see some guys in there, picking feet and whatnot, and they're going to say, 'do this, do that,'” said Taylor. “The thing about addiction, to get and stay sober, you've got to help another addict.”

Ultimately, Taylor envisages a recovery program with a racetrack backstretch-located dormitory.

“The idea would be to put them through our program, get them sober 90-days, then move them into that dormitory with a house manager and keep the drug testing going,” said Taylor.

“I don't know how it's going to go or how it's going to grow,” Taylor added. “But I know there's a huge need for it. And I know it's a win-win for the industry, for the horses and the horsemen.”

Lisa Lazarus | Carley Storm

HISA'S ROLE?

Substance abuse on the backstretch is on HISA's radar, said the organization's CEO, Lisa Lazarus.

“If we have a significant amount of our population that we depend on to run racing that is struggling with addiction or abusing drugs, I think we have a moral obligation to help those people and to do something for them,” Lazarus said, adding that she's already discussed the need for providing a stronger network of industry treatment programs with those already working on the problem.

For the sake of improving safety and integrity in racing, “it's just not acceptable to say that meth in the workplace is okay. And I think it's everyone's job to fix it,” Lazarus said. “The trainers deserve to have a whole lot of help from racetracks and other organizations to help prevent employees from using meth on the backside. It's not only their responsibility.”

That said, “I would like to encourage more trainers to think to themselves, 'you know what? For $25 more, I don't need the cheaper groom. I could find a groom that I actually know and feel more comfortable with and use them instead,'” Lazarus said.

But given how ubiquitous drug use is on the backstretch, what about those trainers unable to find reliable drug-free help because of the industry's chronic staffing shortage? Or those struggling trainers unable to fork out premium prices?

“I recognize that sometimes it's not achievable,” said Lazarus. “But obviously, the anti-doping system is based on a system of fault. So, when trainers have come forward and have evidence of workers in their stable that are on the drug, they obviously get a much more relaxed penalty because they have an explanation. And that's only fair.”

The “complicated question,” said Lazarus, is how to find the correct balance between “being fair to horsemen and what they can control while also requiring some level of responsibility.”

At the launch of HISA's anti-doping and medication control (ADMC) program, the screening limit for meth was the same as for the Racing Medication and Testing Consortium (RMTC), said Lazarus. “We've ended up quadrupling it,” she added, of the screening limit.

Though many cases have been dismissed as contamination, has HISA's approach been a fair one for the horsemen and women so far?

“It may be that the science shows that in time the screening limit needs to be raised,” said Lazarus.

“The one thing I would say is there is no racing jurisdiction in the world or horse sport in the world that doesn't test for and sanction for meth. And actually, our rules are amongst the most lenient with regards to meth because we do take into consideration the risks on the backside,” Lazarus said, pointing to the recent case of Harness racing trainer Clarence Foulk suspended for one year stemming from a 2023 methamphetamine positive.

When asked if the way Morfin has been treated has been reasonable, his attorney, Tyre, responded that the constraints of the system guided their approach.

“If we were to fight the case forward it would take months,” said Tyre, adding how his client could have remained suspended for that period. “This was the best way to get him back to work,” he said.

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The link for an equine-related Committee on Animals and the Law of the New York State Bar Association [has gone] live. It's a webinar on the Horseracing Integrity and Safety Act (HISA): Its Impact on Equine Welfare, NYS Racing and Regulation, and Federal Administrative and Constitutional Law.

The webinar will be held Thursday, April 18 from 12:00 p.m. to 3:00 p.m. EDT. Attorneys who attend are eligible for up to three NYS MCLE credit hours. These credit hours are valid in almost every U.S. jurisdiction. Non-attorneys are welcome to attend.

The Committee on Animals and the Law (COAL) of the New York State Bar Association has organized this excellent event. Speakers will explain the legal structure created by HISA, HISA's impact and future; the legal ramifications of HISA on state, federal and private actors; and HISA's effect on equine welfare. We expect to wrap up with a lively and informative discussion panel among the speakers. We hope attendees will leave the webinar with a greater understanding of HISA and the state of the State of New York's regulated racing industry.

What our roster of speakers will have to say promises real value to legal practitioners and others involved in racing. If you have any particular questions or comments you think would make good fodder for the discussion panel, please don't hesitate to let Fiona Farrell know in advance at ffarrell@nycap.rr.com.

Our program faculty includes:

• Lucinda Finley, University of Buffalo Law School
• Joi Garner, General Counsel, SVP, and Secretary, New York Racing Association
• Lisa Lazarus, CEO, Horseracing Integrity and Safety Authority
• Robert Williams, Executive Director, New York State Gaming Commission

To learn more about the program and to register, click here.

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A good portion of the HISA Town Hall was spent emphasizing the role of the horsemen's advisory group as a vehicle for potential change and modification in HISA's regulatory framework, having driven tweaks to the federal authority's rules on things like pre-race electrolyte use and looser sanctions for positives related to human substances of abuse (more on that lower down).

“There's a lot of conversation right now around veterinary inspections and vet scratches, and how HISA can make a positive impact,” Lazarus added.

“Those are state processes and state judgments. But HISA, we believe, can do some things to make it better for all parties,” Lazarus added. “That's something we're talking a lot about.”

Below are summaries of some of the key portions of the Q&A.

Q: Should HISA's Remit be Broadened to Police the Sales? 

The question of whether HISA should broaden its regulatory reach to encompass the sales has been much discussed ever since Jeffrey Englehart faced a possible two-year suspension after one of his horses tested positive for clenbuterol.

Englehart argued that he did not give the horse the drug and that it had been given prior to the horse's purchase at the OBS auction a few months beforehand. A subsequent segmented hair test revealed that the clenbuterol had indeed been administered before Englehart became the trainer.

In discussing the topic, Lazarus explained that the act is written so that racehorses fall under HISA oversight only when they record their first official workout.

“And that's been interpreted to mean the first published work in Equibase,” said Lazarus. “There's some question about whether or not breeze shows would qualify, and they might, but we haven't got to that point just yet.”

Lazarus further explained that in October, she met with representatives from the three leading sales companies. “And they agreed to work together to come up with an anti-doping program that aligned with HISA, so that there's a sensible journey from weanling, yearling, 2-year-old, and then to horses of racing age.”

Both trainers argued that a strong case could be made for HISA to police the horse sales, though Moquett voiced reservations about the practicalities of such a program, like the possible licensure of parties handling horses in their formative years.

“There's a lot of information [that would need to be] gathered about working with these horses that all of a sudden is require daily… when we eventually get these horses,” said Moquett.

“Once we open that Pandora's Box, now all of a sudden we're going to require people to list who the owners are. You're going to require trainers and the consignors to have a license. You're going to start looking into places you've never looked,” Moquett added.

“I think Pandora's Box should have been opened a long time ago,” Romans responded, before broaching the topic of greater transparency on corrective surgeries performed on youngstock prior to the sales.

Q: Steps Taken to Prevent Environmental Contamination?

Another key area of concern among stakeholders is that of inadvertent contamination through the horse's environment.

“Everyone needs to play a part in making sure that we're delivering a clean and sterile—as sterile as possible—environment,” said Lazarus, before ticking off various points of address, some of which were included in a recent letter to the editor.

She said that the overall cleanliness of test barns—which are overseen by HIWU—has improved since the start of the ADMC program.

“However, when it comes to other common areas like receiving barns, that is something that needs a lot of work,” Lazarus admitted.

As such, the receiving barn is now part of the racetrack accreditation program, she said. HIWU investigators are also performing daily spot checks to determine which racetracks might not be stepping up to the task.

“We now have the opportunity to launch an investigation if we believe that, based on positive tests, there may be a contamination risk at a particular racecourse,” said Lazarus. “We also have mobile testing packs where we can test straw, soil to see whether or not we're finding substances that shouldn't be in a horse's environment.”

Q: Is a Possible 60-day Penalty Still too Onerous for Substances of Human Abuse Violations?

Under a proposed rule change, a first time violation for a positive test concerning a human substance of abuse like cocaine or methamphetamine has been lessened to a maximum 60-days. But is this still too onerous? Should it be closer to something like 14 days?

“Sixty days is really a cap,” said Lazarus, before adding that determining a possible source for the positive test is key to receiving a lesser penalty.

Also important is for stakeholders to illustrate to regulators what steps they've taken to mitigate the chances of inadvertent environmental contamination, like barring staff from urinating in the stalls and requiring them to wash their hands before mixing feed, said Lazarus.

“One of the things that struck me when I visited Ron [Moquett's] stable at Oaklawn is he has a huge poster in his barn that says, 'if you urinate in the stables, you will be fired,'” said Lazarus. “That's something, if Ron has a positive test, that would be a favorable consideration. He's contributing to what we're all trying to do which is reduce the likelihood of anything that shouldn't be in a horse's system getting into a horse's system.”

Moquett followed that up by saying how, “If you get a positive, it's very important you address the definition of how you think it got there” with HIWU.

“Before you get mad and start throwing stuff, the first thing you've got to write is the truth as you first saw it,” Moquett added, emphasizing how feigning ignorance as to the possible source of the contamination won't cut it under the new federal regime.

“Just let them know that you are conscious of the opportunities for a bad test, and that you're doing everything in your power to [prevent it],” Moquett added.

What other steps should be taken in the event of a positive test for a human substance of abuse, or for an atypical finding?

The panelists recommended that responsible parties first reach out to Alan Foreman, the horsemen's ombudsman. Hard-up stakeholders can also take advantage of a panel of pro-bono attorneys.

Not all who apply will be eligible. “But we've never denied anybody who has actually applied for pro-bono counsel to date,” said Lazarus.

Q: Why is HISA Using so Many Different Labs When Lab Variability is Such a Concern?

The TDN reported last year that a variety of differences between the laboratories—from different testing equipment to different testing methodologies to different sets of staff interpreting the results—mean that they can screen for different numbers of substances, and have varying abilities to screen for the same substances, outside of some 300 core analytes.

“The way that law is written, we're required to give the state where the testing takes place the opportunity to put their lab forward,” said Lazarus, adding how, if the lab in question fails to meet performance specifications, HISA is not required to use it.

With the recent news that HISA is no longer using the services of the University of Kentucky's Equine Analytical Chemistry Laboratory, there are now five labs used under HISA's Anti-Doping and Medication Control (ADMC) program.

“I think with five labs we can get really consistent results,” said Lazarus. “[But] if we can get down to a point where the samples… [can be processed] by three or so labs, that would be preferable.”

The Racing Medication and Testing Consortium (RMTC) currently conducts the lab accreditation process every two years. HIWU is working to take over that process.

Q: Is HISA Working on a Universal Owner-Trainer license?

Despite HISA requiring stakeholders to apply for a federal license, owners, trainers and other industry participants are still required to apply state-by-state for individual licenses. That might change.

“That is absolutely something on our radar, and we know that that would be a huge benefit to the horsemen,” said Lazarus. “Once we get the fundamentals of HISA in place to deliver it working well, and working smoothly, that is an area we will try to be helpful on.”

The horsemen's advisory group, said Moquett, brings the topic up once every two weeks.

“If this is going to be a truly uniform industry, then it needs to start with the very first thing, which is the licensing,” he said. “I think it's an odd deal we haven't fixed it yet.”

Q: Is the Prohibition of Toe Grabs Warranted?

While HISA generally prohibits the use of toe grabs, it offers an exemption permitting the use of traction devices in the form of either a full outer rim shoe (up to 4 mm in height) or a toe grab (up to 4 mm in height) on hindlimbs on the dirt.

The prohibition on toe grabs, said Lazarus, was based on science and research. “Internationally, toe grabs haven't been allowed for quite a long time,” she added. “The U.S. was the last racing jurisdiction to have regulations around toe grabs.”

When asked if further toe grab allowances should be given when it comes to deeper dirt surfaces, Lazarus argued that the data suggests the prohibition has been successful.

“Probably the racetrack that had the biggest complaints about this rule was Prairie Meadows, and they went from in 2022 a 2.39 [fatalities per 1000 starts rate], a much higher fatality rate. And this year, they were exceptional—they were 1.14,” said Laazarus. “I'm not suggesting the whole reason is to do with toe grabs, but at least the data shows they're not worse off with that rule than they were previously.”

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Let me start by laying out the relevant history of Tramadol, an opioid analgesic, in horseracing. Tramadol has always been a prohibited substance under ARCI rules; it was originally a Class A penalty and was changed to Class B in March 2016. In fact, Carol Cobb, a Kentucky trainer, was ordered to serve a 180-day suspension in 2021 for Tramadol (the violation arose prior to March 2016.)   Every international racing jurisdiction bans Tramadol. Under FEI rules (sport horses), Tramadol is classified as a doping–not medication–substance, and a positive test yields a presumptive two-year ban. Under HISA, Tramadol is a Class B violation because HISA's ADMC Committee recognized that there are legitimate indications for the use of Tramadol in a horse outside of a race.  A Tramadol positive now comes with a 15-day suspension, which can be reduced to seven days if the trainer accepts the consequences without a legal challenge (which is what Rusty opted to do in this case). HIWU testing specifications for Tramadol are consistent with TOBA's Graded Stakes testing which were in place prior to the implementation of the HISA ADMC Program. Kentucky samples were previously tested to the TOBA standards, as the KHRC did not distinguish between stakes and non-stakes races when testing for Tramadol. So, put simply, nothing has changed regarding the treatment of Tramadol in Kentucky, except that HISA has a more lenient sanction than previously applicable to Kentucky trainers.

One of two things is true for any substance: it either has a legitimate, medically justified use in Thoroughbreds and is permitted to be administered properly–or it doesn't, regardless of whether it's been proven to enhance performance. If a substance has no legitimate therapeutic use, then as an industry we need to ensure these substances are not permitted in a horse's system–whether intentionally or unintentionally. In addition, while horsemen's fears are understandable, in truth the risk of “contamination” causing a positive test is exceedingly low.  Nonetheless, HISA firmly believes that maintaining a backstretch free of contamination is a responsibility that must be shared amongst all racing stakeholders, and not fall exclusively on horsemen's shoulders.

So, what are HISA and HIWU currently doing to help protect horsemen from the risk of contamination?

 The Atypical Findings Policy: This program applies to environmental contaminants (e.g., ractopamine, caffeine) and hormones that the horse can produce on its own (e.g., testosterone). The full list of Atypical Findings substances can be found here. HISA Anti-Doping and Medication Control Program Atypical Findings Policy – HIWU.  If any of those substances are detected in a horse's sample, HIWU recognizes that they may likely be the result of contamination, and an investigation is initiated to determine the likely source or cause of the positive test. If HIWU is satisfied that the likely source of the positive was contamination, the trainer is never charged with a violation, and it is never made public.  Since HIWU took over testing nine months ago, there have been 35 positive tests suspected of being environmental contamination and only two have been pursued as violations. The public has not heard of these positive tests, because they are disposed of confidentially; in short, it's a successful program.

Inadvertent Transfer of Human Drugs of Abuse: This is a modification that HISA made in response to a request from the Horsemen's Advisory Group. This separate protocol applies to a list of substances including cocaine, marijuana, methamphetamine, and oxycodone, and is included in the revised rules sent to the Federal Trade Commission.[1] If any of those drugs are detected in a horse's sample, the expectation is that it is likely inadvertent human transfer, and, assuming that the new rules are approved, the ineligibility period will be capped at 60 days (unless of course there are concerns, based upon the available evidence, that the drug may have been intentionally administered.). While HISA awaits the approval of the new rules, HIWU is putting any cases that would result in a shorter ineligibility period under the new rules on hold so that horsemen who have such cases now will be able to benefit from the proposed rule change if it is approved.

All Track Accreditation Visits Now include Cleanliness and Protocol Reviews related to Receiving Barns: Beginning in 2024, once HISA became alerted to Horsemen's concerns, these receiving barn reviews were added as a mandatory requirement at all HISA track accreditation visits.

What are HISA and HIWU planning to do to further protect Horsemen from the risk of contamination?

Random Use of Mobile Drug Test Pouches: Prior to Rusty Arnold's letter, HISA had purchased a significant number of Mobile Drug Test Pouches and is engaging in discussions with HISA's Racetrack Accreditation team and HIWU on how these tests might be deployed under a protocol that would further assist HISA in reducing contamination risk from the backside.

Daily Monitoring by HIWU Investigators: Also previously planned, HIWU investigators stationed at racetracks will employ a daily “to do” list each morning beginning on March 14, which will include the monitoring of common areas for horses, such as receiving barns, for cleanliness.

Continually Review Testing Levels to Address Contamination Issues: As an integral part of HISA's Laboratory Harmonization Initiative, the laboratories continually review testing levels for harmonization, contamination risk, and to ensure consistency with the goals of the ADMC Program.

What can horsemen do to help?

If you See Something, Say Something: As an industry, we are all in this together. We need to know when horsemen observe contamination risks at racetracks if we are to be effective. Please email HISA at keepitclean@hisaus.org with any photos or concerns and we will follow them up immediately. We will keep the source of all such communications strictly confidential.

Maintain a Strict Policy against Urination in the Stables:  We understand that trainers cannot be everywhere and see everything. But your employees should know that urinating in the stalls is prohibited and, if they do, there will be serious consequences.  To be most effective, this should come with reminders to employees to apply hygienic practices, especially handwashing.

If You Can Afford Them and the Racetrack does not Provide Them, Install Webcams in Your Barns: HISA encourages the installation of cameras whenever and wherever possible for an additional layer of risk protection.  HISA will be working to promote more widespread use of cameras at racetracks.

Use Best Efforts to Avoid Hiring Drug Users in Your Barn:  We understand that this may not be obvious when you hire someone, but you should at least have a policy in your stables of avoiding the knowing hiring or retention of drug users.

In sum, HISA and HIWU are fully committed to a fair and effective ADMC program that minimizes the risk of holding anyone without fault accountable for an anti-doping or controlled medication rule violation. If everyone does their part as listed above, we believe that goal is attainable. The HISA ADMC Program will always prioritize the inherent integrity of the program by treating everyone, no matter their stature, the same. We will never allow personal views, or the reputation of any individual racing participant, to supplant what the laboratory reports or related science dictates. (In fact, the Horseracing Integrity and Safety Act prohibits HISA/HIWU from taking any trainer's pre-HISA history–good or bad–into account.) Having the regulator decide who are the “good” guys and who are the “bad” guys, would completely undermine the integrity of any program, and make HISA's mandate entirely futile.

We hope by outlining our program and explaining how trainers can contribute, you will see that we take this issue seriously. HISA and HIWU always welcome constructive industry feedback on our programs as we continue to refine processes and protocols. Feedback can be submitted directly to HISA at feedback@hisaus.org or to the Horsemen's Advisory Group here at horsemenadvisory@hisaus.org.  Please don't hesitate to continue to provide feedback and suggestions of any nature, so that we can work together to reach the important goals that are in the common interest of all industry stakeholders.

[1] The full list includes the following substances:  i) Cocaine/Benzoylecognine; (ii) Methamphetamine; (iii) Methaqualone; (iv) Methylenedioxyamphetamine (MDA); (v) Methylenedioxyethylamphetamine (MDEA); (vi) Methylenedioxymethylamphetamine (MDMA);(vii) Oxycodone; (viii) Phencyclidine (PCP); and (ix) Tetrahydrocannabinol (THC).

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“There is a little bit of a misunderstanding about what HISA's authority is in this regard,” she said. “We can only do what the statute allows us to do and right now the statute specifically provides that a horse becomes a covered horse upon its first workout. We would have to ask for a legislative change if we wanted to change the scope of that jurisdiction, which would be a heavy lift and not something we'd probably go to Congress and try to do right now.”

Lazarus stresses that the sales companies should use every resource available to them to make sure that sellers are not using drugs that might enhance the value of a horse being sold.

Lazarus said she has had discussions with the heads of the sport's three largest sales companies–Keeneland, OBS and Fasig-Tipton–and asked that they work together to come up with unified rules that mirror those already in place by HISA for covered horses.

“HISA did convene a meeting with all the sales companies in October,” she said. “We all got together in a room and discussed the fact that it made sense to get on the same page. We would hope that there would be was a logical protective flow from weanling to retirement that makes sense. It doesn't have to be the same program for every stage of a horse's life, but it needs to be sensible and consistent and all fit together. There was wide agreement with all the sales companies that this was an important initiative and they said they would work towards it. They've been working really hard on coming up with an aligned agreement.”

Lazarus said that if there is still a reason to suspect that some horses are slipping through the cracks at the sales, HISA might take another look at getting legislation that would allow it to categorize a horse as covered at some time prior to its first official workout.

“I trust that the sales companies are going to be able to do this on their own and that we won't need to take a stricter view,” she said. “If for some reason that doesn't happen, we would definitely, over time, look at that and consider our options. Once a horse comes into the HISA program and is our responsibility we do everything we possibly can to protect it. But not having a window into what has happened with the horse before they become a covered horse can be challenging. That's why we are working towards this aligned system where everything is really clear and the sales companies are all doing the same thing. If that is a fit with HISA's program, that would be really beneficial for the industry.

“The way to move the sport forward is to have more consistent and stricter regulations throughout a horse's life. Based on my experience since HISA's inception, that is most effectively done when the stakeholders come to the table and are willing participants. You come up with a much stronger program when you have everyone buy in. I am working every day to earn the trust of horsemen and earn the trust of the racetracks. If I could get sales companies on board and make changes that make a lot of sense, that would mean we would have a much better chance of being successful right out of the gate. I really believe that's where we need to end up. But I also believe that given where we are and given the commitments I have received from the sales companies, we'll be able to do that without having to legislate or change HISA's jurisdiction.”

Englehart was notified that a horse under his care had been found to have Clenbuterol in its system when it was tested by the Horseracing Integrity and Welfare Unit (HIWU) after it broke down in a workout at Finger Lakes in November. The positive was the result of a hair test and the infraction was made public on the HIWU website. Englehart faced a suspension of up to two years.

Englehart insisted he never gave the horse the drug and that it had to be given to the horse before he bought it at Ocala. The original HIWU test was a standard hair test. Tests known as segmented hair test can pinpoint when a drug was given to a horse and Englehart pushed for the horse to undergo that type of test. HIWU had the Kenneth L. Maddy Equine Analytical Chemistry Laboratory at the University of California, Davis perform the segmented test and it revealed that the Clenbuterol was in fact administered before Englehart became the trainer. All charges against Englehart were then dropped.

Lazarus admitted that the Englehart matter could have been handled better.

“There was an initial matter that we had to flag because something was found in the horse,” she said. “But we should not be holding the trainer responsible if that substance went into the horse before he or she was responsible for it. One thing we are going to change, we are not going to make a positive test from hair public until a B sample comes back.

“The only way we failed Mr. Englehart in this case was the public announcement of his violation. He didn't have any suspension and there were no repercussions from a sanctions standpoint. There was nothing in place until the system concluded, but the public did know about it. It would be different if Clenbuterol were found in the blood or urine. We know how long Clenbuterol can stay in blood and urine. So if there is a Clenbuterol finding in blood or urine there would be no ambiguity unless the trainer got the horse the day before or within a week. With hair testing we can find things going back six months and even a year sometimes.”

“What I really hope is that this situation shows the public and the racing industry that HISA is always going to do what's right. We are going to follow the science and we are going to follow the facts. We are giving Mr. Englehart the money back that he spent for the B sample. He is going to be made entirely whole. As I said, the one thing I would do differently is not to have made this public from the outset. This is the first case we've had of this nature and I've always said there will be things that we learn along the way that we didn't foresee and that we have to adjust.”

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Nonetheless, the figures showed that the sport has made obvious strides since 2009 when it comes to fatalities. In 2009, the rate was 2.0 per 1,000 starters. When compared to 2009, 2023 shows a 34% decrease in risk of fatal injury.

“This change is statistically significant,” said Professor Tim Parkin (University of Bristol), who has consulted on the EID since its inception. “This is equivalent to 171 fewer horses sustaining a fatal injury racing in 2023 than would have occurred had the number of starts remained constant since 2009.”

The 2023 figures were the second lowest since the EID began compiling numbers, surpassed only by 2022.

Analysis of the EID was provided Parkin and by Dr. Euan Bennet of the University of Glasgow.

“There was a slight increase in the rate of fatality from 2022 to 2023 of 5.6%,” Parkin said. “However, this is not statistically significant, and we are encouraged by the low numbers in 2023 that the industry is still headed in the right direction with regard to keeping its horses safe.”

Based on the 2023 data, 99.87% of flat racing starts at the racetracks participating in the EID were completed without a fatality.

Once again, synthetic tracks proved to be the safest among the three types of racing surfaces. There were 0.97 deaths per 1,000 starters on synthetic tracks, 1.13 on turf courses, and 1.43 on dirt tracks.

Races for 2-year-olds proved to be the safest types of races.  There were 0.79 fatalities per 1,000 starters in those races versus 1.37 for 3-year-old races and 1.38 for races for 4-year-olds an upward.

By distance, races run at less than six furlongs showed the fewest fatalities at 1.22 per 1,000. Races run from six to eight furlongs had a rate of 1.37 and for races longer than eight furlongs, the number was 1.32.

During the year, the problems of horses breaking down were magnified by a rash of fatalities at Churchill Downs and Saratoga. At Saratoga in 2023, the rate of breakdowns was 2.55 per 1,000 starters. Churchill Downs does not make its numbers public.

Among tracks that had meets of more than 10 days, one stood out. There were zero fatalities at Del Mar during its racing seasons.

Racetracks under the jurisdiction of the Horseracing Integrity and Safety Authority (HISA) fared better than non-HISA tracks in 2023. There were 1.23 fatalities per 1,000 starters at HISA tracks, while the number at non-HISA track was 1.63.

“HISA's most important goal is driving down equine fatalities,” said HISA CEO Lisa Lazarus. “We undoubtedly have significant work ahead of us, but I am pleased to see the rate is trending in the right direction. The reduction in the rate of equine fatalities at tracks under our jurisdiction demonstrates that setting high standards for racetrack safety and anti-doping and medication control across the country makes Thoroughbred racing safer.”

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