Medication | Horse Racing Free Tips

What Will HISA Look Like?

We recently ran part one of our story on the challenges facing HISA. Today, we deal with lawsuits, adjudication, and more.

This time next year, the machinery of horse racing in the U.S. may be almost a month into a radical system overhaul.

But with scant few calendar pages between now and then, what do we know about how the cogs, wheels, and pulleys of the Horseracing Integrity and Safety Act (HISA) will work together?

To find out, the TDN reached out to Charles Scheeler, chair of the HISA board of directors, interim executive director Hank Zeitlin, as well as several individuals listed on HISA's two standing committees. All explained that they were unable to comment publicly at present.

U.S. Anti-Doping Agency (USADA) chief executive officer Travis Tygart was also unable to speak in person within time of the story going to print, but the agency provided answers via email.

Figures familiar with the drafting process stress the changing nature of the blueprints–cold comfort to certain state regulators and other stakeholders concerned that with so many details to thrash out, few specifics have yet been made public, especially when crucial deadlines loom large, as we detailed yesterday in part one.

In part two, we try to parse through other key aspects of the program, beginning with arguably the most salient, given recent high-profile cases in the U.S.–that of enforcement.

Lawsuits

All of these points could be moot, however, if either of the two federal lawsuits seeking to strike the law down on constitutional grounds are successful.

In March, the National Horsemen's Benevolent and Protective Association (National HBPA)–along with a variety of state affiliates–filed federal suit against the Federal Trade Commission (FTC), arguing that it affords powers to private individuals and a private organization in an area strictly limited to a government entity.

The following month, it was announced that a second lawsuit–spearheaded by the Oklahoma Attorney General in conjunction with that state's racing commission–was similarly focused on the constitutionality of the law, focusing in on the 10th amendment.

Judicial rulings are essentially pending in both cases.

Sarah Andrew

According to Frank Becker, a noted equine lawyer and former adjunct professor at the University of Kentucky College of Law, the “Oklahoma” case has a “significant chance” of prevailing.

“But what happens at the district court level will not be the final word–it's really going to be up to the court of appeals,” Becker says, speculating that either case could eventually be taken up by the Supreme Court.

If the district courts render rulings against the defendants, what might that mean for HISA's implementation on July 1 next year?

“While this case is pending, there will be this battle over whether the law will be enforceable in the interim,” says Becker, itemizing a chessboard set of scenarios made complicated by the possibility of inconsistent rulings by different courts in two different circuits.

One is that an injunction goes into immediate effect, in which case, the law would be put on the back burner until an appeals court meters out judgment–if, as would be likely, the government appeals the district court's decision.

Another is that a district court judge renders a stay on the injunction pending appeal. In this scenario, the appeal is “unlikely” to occur before the July 1 deadline, Becker says, meaning the law would theoretically go into effect.

Nevertheless, nothing is etched in stone.

Becker pointed to a potential precedent-setting scenario in a current case involving the cruise ship industry and the Centers for Disease Control and Prevention (CDC) in which the judge granted a stay on an injunction, only to subsequently withdraw it. And so, “anything could happen,” says Becker.

If the case reaches the hallowed halls of the U.S. Supreme Court, a final decision “could take years,” says Becker.

“But again, you've got the issue of, if there's an injunction in place when it goes to the Supreme Court, the Supreme Court would [likely] be asked to lift the injunction pending a decision,” says Becker. And how it might decide, he adds, “is very hard to predict.”

For the purposes of the story, however, we'll take the view the law will already be functioning a year from today.

Adjudication Process

HISA's enforcement agency serves several vital purposes, from establishing a deterrence program to implementing “anti-doping education, research, testing, compliance and adjudication,” among other duties.

Racing Post

But first, who will the Horseracing Integrity and Safety Authority–the broad non-profit umbrella established by HISA and commonly referred to as just the “Authority”–contract with to serve this purpose?

The Authority is largely expected to enter into an agreement with USADA, but the contract hasn't yet been formally inked. Indeed, according to USADA spokesperson Adam Woullard, the agency is working through the details with the Authority, “in anticipation of signing” a contract.

If, for some reason, USADA is not the contracted enforcement agency, the law instructs the Authority to enter into an agreement “with an entity that is nationally recognized as being a medication regulation agency equal in qualification” to USADA–conceivably individual state commissions.

In terms of the enforcement agency's broad remit, the processing of violations sits high on the priority list.

But which specific set of personnel will be responsible for adjudicating the first drug-related violations that arrive after July 1 next year–those belonging to the existing regulatory infrastructures within individual states or those belonging to USADA, or the contracted enforcement agency?

Specifics remain unclear. According to Woullard, USADA would “independently handle” the “investigation and results management” arm of the program.

“Independence is the cornerstone of any effective and fair anti-doping program,” he wrote. “Complementing this, education is paramount in creating a cohesive program and we look forward to working with those within the industry to help them understand and comply with the rules.”

Asked what the adjudication process might look like on a practical, everyday basis, Woullard replied that “the exact nature of how this will look is a work in progress.”

It appears, according to several individuals familiar with the process, that a tiered approach could be taken to the adjudication of medication violations, with the severity of the infraction governing which set of personnel–either the state's or USADA's–will handle the hearing.

“Extra importance could be attached to certain races and horses,” says Bill Lear, The Jockey Club (TJC) vice chairman and someone instrumental in getting the legislation passed.

Coady

Appeals

Once a violation has been adjudicated, a notice of the sanction will be filed with the FTC. The sanctioned party then has 30 days to petition for a review of the decision, which will be handled by an administrative law judge within the FTC. That judge then has 60 days to issue a ruling.

A number of stakeholders contacted for the story questioned whether the FTC has the necessary human capacity and experience to handle its expanded obligations under HISA.

“How quickly do rules and hearings move through the federal pipeline?” says Bennett Liebman, government lawyer in residence for the Albany Law School's Government Law Center.

Liebman has previously written of the FTC that it has “much bigger business to pursue than just racing,” and that it “enforces many more laws of greater consequence to the American economy than horse racing regulation.”

The FTC failed to provide a response to questions about the steps the agency has taken to prepare for HISA's implementation.

But according to Lear, the FTC has been “very engaged” with defending the two federal lawsuits challenging the constitutionality of the law.

Safety Committee

In tandem with the Anti-Doping and Medication Control Standing Committee, the Racetrack Safety Standing Committee will be responsible for establishing a uniform set of rules governing things like training and racing safety protocols that are regionally specific, crop use, racetrack surface quality standards, and a racetrack accreditation program.

What could those safety standards look like?

The safety committee is required to consider as a blueprint existing programs like the National Thoroughbred Racing Association (NTRA)'s Safety and Integrity Alliance Code of Standards, along with other comparable international programs.

“You won't see much of a sea change in most of racing,” says Alex Waldrop, president and CEO of the NTRA, pointing to tracks and jurisdictions like those in Kentucky, California, New York, and across the Mid-Atlantic region, which have in recent years implemented their own significant plans to reduce equine fatalities.

“But there are multiple states where that has not been the case,” says Waldrop.

Nevertheless, the safety measures even among the more proactive tracks and jurisdictions can vary quite significantly, and there's apprehension among respective stakeholders that the Authority's uniform safety standards won't have the same bite.

“We're pretty proud of the work we've been doing here, and we don't want to see that rolled back in any way,” says Scott Chaney, executive director of the California Horse Racing Board (CHRB), pointing to the immense political headwinds the state industry has had to withstand in recent years.

Susie Raisher

Unlike the baseline medication standards, however, the law appears to provide a certain amount of individual wriggle room in the implementation of safety and welfare protocols.

According to Lear, individual tracks–but not individual states–will have the leverage to implement stricter safety standards than that outlined by the Authority.

“That said, I think HISA is going to make every effort to work with the states to create a good working relationship, and one that doesn't back up on any safety standards,” Lear says.

State racing commissions aren't expected to be rendered redundant under the new law–indeed, the Authority will likely contract state racing commissions to enforce components of the racetrack safety program.

But whether individual tracks decide to tighten their own safety standards and protocols or not, those in charge of nailing down the specifics of the safety program have the sizeable problem of wrestling with this central question, says Liebman: Which entity, the individual state commission or the federal Authority, has exactly what responsibility?

“Do racing commissions still have the power to punish riders for improper whip use?” he says. “Who will have the power to scratch a horse for medical or welfare reasons?”

Funding Concerns

Some of the touted benefits of the new law concern improvement in racing's overall intelligence infrastructure, including greater out-of-competition testing and a more comprehensive investigatory network.

HISA also calls for the implementation of a centralized database for a variety of potential key information points, including injury and fatality data, pre- and post-training and race inspections, and inclusion on a veterinarian's list.

Coady

“We'll be able to better follow these horses wherever they are on a daily basis–we'll know what they look like a week ago, a month ago, a year ago,” says Waldrop.

But undergirding the successful implementation of any of these measures is the issue of funding–what almost everyone contacted for this story described as something of an elephant in the room.

The language of the law outlines two broad scenarios–that individual racing commissions establish a mechanism to remit fees to the Authority, or else the racing commissions permit the Authority to assess the fees for them.

How will the fees be calculated?

If a state elects to collect and remit the fees itself, it may consider “foal registration fees, sales contributions, starter fees, track fees, and other fees on covered persons,” wrote Sarah Reeves, attorney with the firm Stoll Keenon Ogden and someone who has worked extensively on building the legal architecture of the law, in an email.

If a state chooses to delegate this task, then the Authority would calculate, “on a monthly basis,” the applicable fee per racing start multiplied by the number of racing starts in the state in the preceding month, wrote Reeves.

She wrote that in the latter event, it is too early to say exactly how the Authority would decide to collect the fees, “whether on a per-start fee basis or otherwise.”

Reeves noted, however, that the law precludes a double tax. “If a state chooses not to collect fees to cover the costs of the Authority in that state, the statute precludes the state from charging members of the Thoroughbred industry any fees or taxes related to anti-doping and medication control or racetrack safety,” she wrote.

As it stands, no specific budget proposals have been publicly aired. And until more specifics are made available, states are largely hamstrung as to which fee remittance route to take, multiple stakeholders told the TDN.

What's more, like a Sword of Damocles, numerous states around the county are already embroiled in budget negotiations for the next fiscal year or two–like in Wyoming, currently in the process of thrashing out their 2022-23 biennial budget, says Charles Moore, the Wyoming Gaming Commission's executive director.

“Here we are going into a budget session and we don't know what to expect–will there be a cost, and if so, what will it be? What is the net effect?” Moore says.

Coady

The longer budget details take to concretize, the more likely are individual states to punt broader everyday responsibilities over to USADA, certain stakeholders warn.

In that scenario, does USADA have enough personnel to manage a larger-than-anticipated workload?

In answer, Woullard pointed to a recent hire in Dr. Tessa Muir, newly minted director of their Equine Testing Program.

“We will continue to recruit experts in the field and train our existing staff for the huge responsibility ahead of us,” Woullard wrote, adding that while USADA will hire additional personnel, including those with equine-specific expertise, “There is significant overlap in several areas of equine and human anti-doping, particularly in relation to doping practices, test planning and risk analysis.”

Lear, however, argues that “HISA is working hard to zero in costs,” and adds that, while “the principal driver of added costs is in out-of-competition testing,” federal consolidation and centralization will bring about efficiencies through economies of scale.

What's Next

In the meantime, some much sought-after details about the Authority could soon be available for public consumption.

On Aug. 15 at The Jockey Club's next annual Round Table Conference, Scheeler is expected to give his first public presentations on developments thus far.

According to USADA spokesperson Woullard, Tygart and Muir have also been invited to appear at the round table event.

If there's an overarching sentiment among industry stakeholders wondering how HISA will fit into their everyday operations, it's centered around caution and circumspection.

“From my own perspective, they ought to be as practical as possible getting started,” says Alan Foreman, chairman and CEO of the Thoroughbred Horsemen's Association (THA). “They're going to have to build confidence in the whole process as it's such a dramatic change.”

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Will HISA Be Ready in Time?

Part One of a Two-Part Series

If the letter of the law is any reliable prognosticator, this time next year the United States horse racing industry will already be nearly a month into what promises to be a major realignment of the planets.

With the official enactment of the Horseracing Integrity and Safety Act (HISA) on the first of July, 2022, racing jurisdictions North and South, East and West will be bound by the same medication standards, safety rules, and enforcement mechanisms–a hallelujah for many who have long championed the ouster of l'ancien regime to pave the way for national uniformity.

But with slightly more than 11 months between now and then–provided in the interim HISA successfully navigates constitutional challenges in the courts–what do we know about how this brave new world will play out on a practical level?

The TDN reached out to Charles Scheeler, chair of the HISA board of directors, and interim executive director Hank Zeitlin, as well as several individuals listed on HISA's two standing committees to discuss the practicalities of implementation. Each said that they were unable to comment publicly at present while they essentially continue to carve out the pieces of the puzzle.

U.S. Anti-Doping Agency (USADA) chief executive officer Travis Tygart was also unable to speak in person within time of the story going to print, but the agency provided answers via email.

Those familiar with some of the backroom negotiations stressed fluidity. According to USADA spokesperson Adam Woullard, the agency is “humbled and excited” to be part of racing's new governing program. “We just have to get all the details in place,” he wrote.

“This is a moving target,” says Alex Waldrop, president and CEO of the National Thoroughbred Racing Association (NTRA), who pointed out that Scheeler only officially assumed the HISA board chairmanship at the end of May. “Nothing's set in stone yet.”

Nevertheless, among many individual state regulators and other stakeholders around the country, there appears to be no small worry that in the relatively short amount of remaining time to nail down the law's working mechanics, a concerning lack of specificity has to date been made publicly available.

“You can make assumptions, you can make guesses,” says Alan Foreman, chairman and CEO of the Thoroughbred Horsemen's Association (THA). But among the industry stakeholders at large, he adds, “nobody really knows.”

Sarah Andrew

Deadlines

Wielding ultimate fiefdom over the law is the Federal Trade Commission (FTC), whose official everyday remit is to “protect consumers and promote competition.”

But practically speaking, the bulk of the work within the Horseracing Integrity and Safety Authority–the broad non-profit umbrella established by the law and commonly referred to as just the “Authority”–will be done within four main bodies.

There's the nine-member board of directors, which provides an overall governing arm to the program.

Two standing committees–the Anti-Doping and Medication Control Standing Committee and the Racetrack Safety Standing Committee–are charged with helping to establish and maintain the uniform standards within their respective arenas.

Then there's the anti-doping enforcement authority, broadly responsible for implementing and enforcing the medication control and the racetrack safety programs. It's widely believed the USADA will fill that position, though that contract hasn't yet been officially inked.

Right now, those in charge of piecing HISA together are in the rule-making process.

This necessitates the standing committees to work toward baseline rules in their respective fields, which they will then submit to the board of directors for approval. The board will then, in turn, file the proposed rules with the FTC for review, for sending out for public notice and comment, and then for promulgation.

There are some hard deadlines baked into the law. In the initial stages of implementation, for example, baseline uniform medication standards, laboratory testing accreditation rules, and racetrack safety accreditation standards will have to be put out for public comment–an as-yet undetermined amount of time.

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The FTC then has 60 days from publication in the federal register to approve a proposed rule or modification.

Crucially for this initial stage, the public comment period and FTC approval needs to be completed in time for the Authority to publicly issue the new rules on or around Mar. 1 next year.

For all intents and purposes, therefore, the Authority has little more than five months to draft its initial uniform rules, says Bill Lear, vice chairman of The Jockey Club (TJC) and someone who has been instrumental in getting the legislation passed.

“I would write a big black line at the end of the year,” he says. “Most of the draft rules need to be to the FTC by the end of 2021.”

And so how far along are the committees in drafting these rules?

Current Progress

The answer is difficult to gauge, given the lack of available information.

According to several people familiar with the process, the board of directors and the racetrack safety standing committee members have conducted multiple meetings.

The committee responsible for helping to establish a baseline set of medication standards met in full for the first time only recently, on July 22.

Around the middle of July, Scheeler, Zeitlin, and Tygart addressed members of the Association of Racing Commissioners International (ARCI), giving attendees the chance to ask questions.

According to Mike Hopkins, executive director of the Maryland Racing Commission, the meeting was a useful primer, but answered little in the way of specifics.

“We've talked, but it's been very broad,” he says, adding that he and his fellow commissioners were told that “they're working on the program, and it'll be ready in early fall.”

When it comes to lingering questions about the practical implementation of HISA, there appears this main through-line: How many of the everyday responsibilities will be left to individual states and their existing regulatory infrastructures?

In that regard, the law appears to leave a fair amount of wriggle room.

It states that the Authority can delegate to a state racing commission components of the racetrack safety and anti-doping and medication control programs, “if the Authority determines that the State racing commission has the ability to implement such component in accordance with the rules, standards, and requirements” that are already established.

Sarah Andrew

According to California Horse Racing Board (CHRB) executive director, Scott Chaney, given the logistical enormity of the proposed regime change, he expects things to look like “business as usual given the strict nature of our current regulations” in California, at least during the initial execution of HISA.

Nevertheless, “I think it's fair to say I have concerns,” he says. “The devil now is in the details. And by details, I mean implementation.”

Medication Standards

From the outside looking in, the easiest issue in terms of wrangling uniformity appears to be the establishment of baseline medication standards, with the law's target aim of largely prohibiting the administration of a substance to a horse “within 48 hours of its next racing start.”

When it comes to which laboratories will be used, the law extends “provisional or interim accreditation” to a laboratory with Racing Medication and Testing Consortium (RMTC) accreditation.

“It isn't clear at this point, but we wouldn't be surprised if the Authority uses this provisional or interim accreditation at least at the beginning,” wrote Sarah Reeves, attorney with the firm Stoll Keenon Ogden and someone who has worked extensively on building HISA's legal architecture, in an email.

Nine laboratories currently employed within the industry already have that accreditation.

That said, at the granular level during this process, those responsible for drafting the new rules will have to grapple with all manner of technical headaches.

Sarah Andrew

The Authority is encouraged to use as a template the International Federation of Horseracing Authorities' (IFHA) lists of permitted and banned substances–including drugs, medications, and naturally occurring substances and synthetically occurring substances–along the IFHA's screening limits for urine and blood.

It's also encouraged to seek guidance from the World Anti-Doping Agency (WADA)'s “International Standard” for laboratories, and the ARCI's out-of-competition testing standards.

When it comes to drug classifications, the law singles out the ARCI's model rules for penalty and multiple medication violations.

One of the primary differences between the current system and the one being drafted is that the IFHAs list of controlled therapeutic substances uses screening limits for blood and urine, whereas in the States, thresholds for blood are the primary benchmarks of choice.

What's the difference?

Screening Limits vs. Thresholds

A threshold is a specified value that regulatory authorities have decided, through rigorous scientific process, is an appropriate level of a certain substance permitted in a horse's system to compete.

Unlike a threshold, a screening limit is a trigger to proceed with further analysis of a sample–indeed, laboratories will often use screening limits when testing for drugs that have established thresholds.

As the RMTC puts it, a screening limit is “a point below which a sample is declared negative and above which a sample is declared 'suspect' or 'presumptive positive.'”

If a post-race sample contains an amount of a regulated substance below the IFHA's screening limit, therefore, that sample is clear.

The various experts TDN consulted for this story explained that there's already significant harmony between the IFHA's control list of therapeutic substances and that largely used in the U.S. “For California, I don't think it's going to be that big of a change,” says Dr. Rick Arthur, recently retired CHRB chief medical officer, adding however that “there will be differences.”

For one, some of the drugs on the IFHA's control list of therapeutic substances don't have U.S. Food and Drug Administration (FDA) approval for use in the U.S., and vice versa.

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The Authority, therefore, will have to establish screening limits for the substances routinely used in the U.S. that aren't on the IFHA's control list if it doesn't want a hybrid model of screening limits and thresholds.

But experts warn that time is fast running out to establish screening limits for some of the U.S.-centric substances, especially if they're going to withstand legal challenges in the event of a disputed medication positive–a likely scenario, given the industry's litigious proclivities.

“We can go to screening limits, but there's a lot of work we're going to have to do to be prepared to defend those in court,” says one expert, familiar with the process, who asked to remain anonymous.

To emphasize the legal imperative for a watertight set of screening limits, the expert pointed to the manner in which medication violations are handled by private entities in other prominent jurisdictions–like England's racing industry, governed by the British Horseracing Authority (BHA)–in contrast to HISA's federal framework.

USADA's Woullard didn't specifically address the question of whether the agency was anticipating a hybrid model of thresholds and screening limits. He did, however, point to other jurisdictions and organizations for potential plugs in the data gaps.

“For example, Racing Australia published screening limits for certain therapeutic substances, not all of which are included by the IFHA. Likewise, the EHSLC [European Horserace Scientific Liaison Committee] publish detection times,” Woullard wrote.

The creation of additional guidance on substances, “whether in the form of withdrawal or detection times,” would come through “scientific discovery” and research, Woullard wrote, adding that “we have not commenced a research program yet.”

The law strictly prohibits individual states from enacting medication standards that are less restrictive than the federal rules. But what happens if a state wants to implement a standard that's more stringent?

For example, California doesn't authorize any level of clenbuterol in a post-race sample, whereas the IFHA's screening limit for clenbuterol is 0.1 nanograms per millilitre in urine.

According to Lear, the language in the law rigidly prohibits individual states from enacting medication standards that differ from the Authority's, even if they're stricter. “It would not be allowed–it would be pre-empted by HISA under the language of the act,” he says.

Ultimately, explained USADA spokesperson Woullard, “the goal is to create a uniform set of rules across the sport that prioritized the health and safety of equine athletes, which is consistent with our human programs.”

Coming up tomorrow: All these points could be moot if the two legal challenges to HISA prevail. What are their chances? And who will pay for HISA? Read about that, along with welfare and safety, and the first public airing of the details, in part two in Monday's TDN.

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Dr. Rick Arthur Q&A: Part Two

After 15 years as California's equine medical director, Dr. Rick Arthur has stepped away from the post. A vocal proponent of tightened welfare practices in the sport, Arthur has spearheaded during his tenure a slew of equine safety reforms that have made California arguably the most stringent regulatory environment in the States. Arthur's forthrightness, however, has led to him staking out positions that have at times proven polarizing.

The day after Arthur officially stepped down, he conducted a Q&A with the TDN, the first part of which can be seen here. In it, he discussed his tenure as California racing's chief veterinarian, the impending implementation of the Horseracing Integrity and Safety Act (HISA), and the recent controversy stirred up by a Washington Post report into his investigation into a series of sudden deaths among Bob Baffert trainees between 2011 and 2013.

The following is the concluding half of the interview. It has been edited only very lightly for grammatical and clarification purposes.

TDN: Another Washington Post story from earlier this week details a 23-page California deputy attorney general analysis of the California Horse Racing Board (CHRB)'s handling of the Justify case in which it states, “The court could find the CHRB abused its discretion and acted in a manner that was arbitrary, capricious, or entirely lacking in evidentiary fact.” Now, you've repeatedly said that the only part of the CHRB's handling of the case that concerned you was the secrecy aspect. If you could go back and redo that whole case, would you do anything differently?

RA: First of all, the case was handled at the recommendation of staff counsel in Sacramento, after consulting with attorneys in the business consumer services and housing agency which oversees the CHRB and with the attorney general's office. That is what was proposed. I certainly agreed with that, in accordance with California law. The dismissal of those cases was done entirely in accordance with regulations and California law.

There is no question that the only person who questions it is obviously Darrell Vienna [attorney representing plaintiff Mick Ruis], who planted the story with the Washington Post. I told the reporter he was being played. But anyway, that's a different issue. The only issue as far as I was concerned was that it was unfair to disqualify this horse when we were going through a process simply because of bureaucratic inefficiency by the California Horse Racing Board. I won't get into the details about why that was the case, but if you go back and look at the regulatory structure or the regulatory processes in California or of the CHRB at that time, I think it's pretty easy to see.

Since then, just to be clear, there have been five scopolamine positives in California. Not one trainer was sanctioned. Not one horse was disqualified. That doesn't include almost a dozen other horses that had scopolamine in their samples below the international screen limit that we use in the laboratory. So, I really have no regrets over it. I have no apologies.

You're talking about information that was provided, most likely, by [CHRB] commissioner Oscar Gonzales, who used to work for Darrell Vienna, to Darrell Vienna to promote this story because it just lost in a court case in superior court. So, where this is going to go, I don't know. But we had a reporter that was played by a plaintiff's attorney as far as I'm concerned.

TDN: Are you saying that Commissioner Gonzales was the one who leaked the document?

RA: I don't know if Oscar was the one, but Oscar has certainly been the proponent of keeping the Justify issue alive. Actually, I filed a whistleblower complaint against Commissioner Gonzales for basically arguing the Justify case as if he was representing Ruis with talking points that were clearly provided by Darrell Vienna.

TDN: When did you file that?

RA: Over a year ago.

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TDN: Has anything happened?

RA: No, I haven't heard back and the state auditor's office told me not to expect to hear back. I'm sure Commissioner Gonzales knows that I filed a whistleblower complaint. I think I haven't hidden my disdain for Commissioner Gonzales for a long time.

There certainly have been attorneys that have tried to play commissioners over the years. And I think that we have an ambitious petty politician that wants to make a name for himself that allowed himself to be played. The Justify case was dismissed in accordance to state law, and it was not dismissed by Rick Arthur. It was not dismissed by [former CHRB executive director] Rick Baedeker. It was dismissed by the board, which is required by law. And that was done properly in accordance to law.

It is a done deal as far as I'm concerned, as much as people would like to keep it alive.

TDN: Now, you brought up the equine safety improvements that have occurred in California. We've made large demonstrable strides forward in that regard. But economically, the sport faces any number of serious challenges. What do you think it needs to do to ensure its longevity and sustainability?

RA: It's a real challenge to maintain the economic health of horse racing and make sure that we're doing everything right by the horse. They don't always go in the same direction. For example, we've raced almost 50% of our starts on the turf course here on a meet that is almost six months long. That really puts a lot of stress on the turf course. But that's where people like to run their horses. You have to have full fields.

We'd obviously like to have breaks so that the turf course could be in better condition. Maybe we need an additional turf course. I don't know exactly what it would be. But we do have to make it more economically viable for the owners, otherwise they're not going to [be able to afford] the PET or MRI [scans], all the other diagnostic techniques and examinations that we now require. So, somehow we have to improve the economics. But the key to sustainability is to make sure that we are taking care of the horse.

Sarah Andrew

TDN: Do you think any of these safety measures are overkill?

RA: I don't know if they're overkill. They're maybe a little bit further than we need to go. But I think we'll sort those out over time.

TDN: Which ones?

RA: For example, a 30-day stand down for fetlock injections with corticosteroids. Not unreasonable, but probably more than needs to be required.

[Note: Arthur subsequently clarified his remarks that his frustration is with what can be the “inability” to regulate in a “meaningful way,” and pointed out that most international racing authorities use at most a 14-day corticosteroid injection stand down.]

TDN: Do you think racing in California is in better shape now than when you first took your position?

RA: I think in terms of the regulations, I think we're in better shape now. I do think that we have lost some public support for horse racing that is going to be very hard to get back. I think we're always going to be under the gun. The animal rights activists are never going to be satisfied with horse racing, just like they aren't satisfied with any other animal use.

California's an odd state that way–most people don't know anything about horses. They don't know a lot about animals. There's not that rural background. Not very many people were raised on farms or around animals. So, there's really kind of a disconnect about how animals should be used in society, and that may not be sustainable for a long period of time.

I think the horse racing structure is in very good shape to go forward. But whether it will satisfy the public in California, I think is going to be hard to predict. I mean we've decreased fatalities, like I said, by 75%. Is that good enough? We will never have racing when there's zero fatalities, just like there will never be flying with zero crashes. I mean, that's just the reality of it.

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TDN: How real an existential threat do you think that is to California racing?

RA: I think it's a real existential threat to racing in California. The Santa Anita fiasco really exposed horse racing to people who weren't paying attention. The racing press understood that horses were injured in racing. The non-racing press really had no idea.

The type of questions that I had from reporters who had never covered racing before, never covered sport, were pretty astounding. I think a lot of people didn't realize that there are fatalities in horse racing. I think it came as a big surprise. And when you look at the numbers, it can be pretty frightening. I'm talking about nationally–there's a lot of horses in training.

TDN: How successful has the sport been thus far in challenging that narrative and what do we need to do better?

RA: I think we pride ourselves on the care we give our horses. There are certainly risks associated with it, just like there is with a lot of different production agriculture. But, I mean, [compare that] to the wild horses out in the fields, which have a life expectancy of about a third of what the horses that are managed have. I think sometimes people don't understand how well we take care of horses, and I think we have to present that message.

It used to be that people came around to the barns, look at the horses and pet them. A lot of people have never touched a horse, and I think if they get that interaction with the horse, that's something that we can sell.

To me, racing is a sport. Horses are athletes. I'm not involved in the gambling aspect of it myself. Gambling pays for the sport for the rest of us. Obviously it's a business. Gambling is key to it and getting horses and getting full field sizes or having the more races, the better the business model. But really to me, I think we have to sell the sport more than we do.

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TDN: What advice would you like to give to your successor, Dr. [Jeff] Blea?

RA: Well, I think Dr. Blea is well suited for this position. He's been in national leadership positions. He certainly is aware of controversy, which comes with this job. You can't avoid it if you're going to do the job right. I think the real issue is to do what you think is right and stand up for what you think is right.

TDN: And what's next for you?

RA: I'm still going to stay involved. I'm still involved in national and international organizations. I'll continue to do that. I've certainly had some opportunities that I'm mulling over in the future. But how hard I want to work? I really don't know.

I have some research projects that [are] still in the works. I'm involved with the Grayson-Jockey Club Research Foundation, RMTC [Racing Medication and Testing Consortium]–those sorts of things that I'm going to continue to do. And the Oak Creek Charitable Foundation as well. So, I'll keep involved in those.

The post Dr. Rick Arthur Q&A: Part Two appeared first on TDN | Thoroughbred Daily News | Horse Racing News, Results and Video | Thoroughbred Breeding and Auctions.

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Dr. Rick Arthur Q&A: Part One

After 15 years as California's equine medical director, Dr. Rick Arthur has stepped away from the post.

A long-time vocal champion, both in his home state and at the international level, of tightened welfare practices in the sport, Arthur has spearheaded a slew of precedent-setting medication and equine safety reforms in California.

During those 15 years, Arthur has been at the helm of the industry's veterinary ship while California has navigated a series of tumultuous storms, including a benighted venture to switch from dirt to synthetic racetrack surfaces during the first few years of his tenure, as well as the Santa Anita welfare crisis that erupted near the beginning of 2019. Known on occasion to be pugnacious and forthright, Arthur has also endured his fair share of criticism as California racing's chief equine veterinarian, most recently concerning the case surrounding Justify's scopolamine positive subsequent to the horse's GI Santa Anita Derby victory of 2018.

Bearer of many hats, Arthur is a former private veterinarian, Thoroughbred owner and breeder, and a member of The Jockey Club. He was also a past-president of the American Association of Equine Practitioners (AAEP) and was honored with the organization's President's Award in 2014. Dr. Jeff Blea, a SoCal-based private veterinarian with 28 years of experience and another former AAEP president, has filled Arthur's vacant seat.

The following is the opening half of a conversation Arthur conducted with the TDN on his first day off the job. It has been edited only very lightly for grammatical and clarification purposes.

TDN: After 15 years as California's equine medical director, what is your main takeaway from that period?

RA: My main takeaway is that horse racing has to pay attention to the horse and develop policies and programs and regulations that put the horse first.

TDN: And looking at the totality of what's happened during those 15 years, has California been successful at doing that?

RA: If you look at the numbers objectively, we've decreased fatalities almost 75% over that period. Some of it is [due to] decreased racing, but far and away, the majority is [due to] the policies and the regulations we put in place and [by] encouraging the culture change to put the horse first.

TDN: How would you characterize that “culture change” during your tenure?

RA: Up until the Santa Anita situation in 2019, I don't think a lot of horsemen really understood that society has changed and that it's necessary to make changes that put the horse first. And there certainly was a lot of push-back when you look at things like the fatality review program, when you look at voided claims, to the continuing education program, to put more science into the art of training. All those things we had tremendous push-back on really until the Santa Anita fiasco.

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TDN: You bring that up. So, the last two years has arguably been the most transformative period in California in terms of medication and safety reforms, many of which you'd been trying to push through prior. You've talked a lot about the cumbersome administrative law process, but why do you think it took something like the Santa Anita welfare crisis to bring about those modifications?

RA: It is very easy to stop regulations in the way that the California Horse Racing Board [CHRB] operated previously. And if you go back and look at all those initiatives that we started–continuing education for trainers, voiding claims, third party Lasix, post-mortem review programs, restricting intraarticular injections, even banning anabolic steroids back when I first started–there was always somebody who was opposing those changes. Even lowering toe grabs that were demonstrated to be associated with increased injury. There was always push-back at every step.

As I said, it's very easy to stop a regulation. Even though everybody thinks that it's easy to add regulations, it's actually just the opposite.

TDN: Immediately after the Santa Anita crisis, these changes arrived very suddenly, a mixture of in-house rules that dictated state policy and sweeping regulations that came thick and fast. Looking back, do you think it was done in a manner that was, in its entirety, fair to the horsemen and their livelihoods, and would you have done things differently given a second chance?

RA: Well remember that many of those were initiated by The Stronach Group.

TDN: That's what I meant by in-house rules…

RA: Some of them were a major change to trainers. In reality, I think some of them were a little bit stricter than they needed to be and done a little bit precipitously. But the fact is, it did open the door for many changes that have been shown to be quite effective.

TDN: Multi-factorial is the key term in any catastrophic injury and in the case of what happened at Santa Anita, official reports point to a variety of precipitating factors. What do you see is the main factor which made that particular Santa Anita winter/spring meet so deadly?

RA: Racing on a bad racetrack.

TDN: Can you elaborate on that?

RA: Look at the weather in the first two months of 2019–the previous year, 90% of the starts were on a fast track. In 2019 for the first two months, 60% of the race starts were on a fast track. We had so much rain during that period of time, there was really not an opportunity to refurbish the racetrack.

In early March, when they stopped racing, we had a dry period. They were able to bring in their previous track superintendent to rework the racetrack. And after that period of time, we really had a relatively safe racetrack. So, the real issue was continuing to race on a compromised racetrack. And it's not just the racetrack that's responsible for that, but horsemen that actually entered their horses and trained their horses on tracks that were not ideal.

TDN: Many see The Stronach Group's ban of Jerry Hollendorfer as an act of scapegoating. Do you think they [TSG] were right to ban him?

RA: I was not involved in that decision.

[Note: Arthur explained that he's involved in ongoing litigation between Hollendorfer and several entities in California, and was therefore unable to comment further]

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TDN: Now, the changes have been extensive over the last two years but we've a lot more on the horizon. In exactly a year's time, the Horseracing Integrity and Safety Act is expected to be implemented. How do you see it fitting into California's existing regulatory and safety and welfare infrastructure?

RA: It will be very, very difficult for the [HISA] safety program to come up with a program as extensive as California's and send it around the rest of the country. That suggests to me that California will still continue to have a stricter, or let's say a more robust, safety program than HISA is going to be able to develop.

How will that actually work? In my reading of the regulation, it's hard to understand because the funds for that safety program will no longer be available to the CHRB–those are some of the nebulous aspects of the HISA law as to exactly how those funds will be developed and how they'll be distributed.

For example, in California we have monitoring veterinarians as a matter of law. As of right now, those are provided by the track associations. That [would conceivably] be something the regulatory agency would oversee. But those individuals are supervised by law and by regulation and by the CHRB official veterinarians. So, how that all mixes together I think is going to be a real challenge for HISA to sort out.

TDN: Ultimately, do you see it as a plus or a minus to California racing?

RA: I suspect it's going to be a step back. I think eventually, long-term for national racing, I certainly understand the need for HISA. I think the national state-by-state regulation of racing and organizations like the ARCI have found themselves incapable of developing a national sport. NTRA was supposed to have a legal office that never came to be either. So, having one entity with control over all of racing, I certainly understand the need for it. And I think it's really, probably, the only way racing is going to survive long term.

TDN: Arguably, the biggest problem in drug testing in the future concerns the detection of genetically engineered products like EPO that mimic the body's own hormones and proteins. If USADA is HISA's drug enforcement agency, do you think they'll do a better job of policing these substances than the sport already does?

RA: It really depends. I certainly know that USADA and WADA [World Anti-Doping Agency] have capabilities in looking at gene doping. The IFHA [International Federation of Horseracing Authorities] has gene doping committees as well. In fact, there's liaison between WADA and the IFHA that I'm involved with. I do think that genetic testing, particularly gene doping, is going to be a real challenge, very expensive. So, I do think having a central entity is going to be critical to addressing that threat.

I don't think you could do it state by state, even though the best school, UC Davis, has some very, very talented people that understand genetics very well. But it's going to take it an international effort to address the risk of gene doping and gene manipulation.

TDN: So, what you're saying is USADA brings…

RA: …They bring international cooperation. It looks as if, even though USADA is different than WADA–certainly internationally–the racing industry is teaming with the FEI [The International Federation for Equestrian Sports], IFHA and WADA to try to pool our resources and understand the risks of how detection of gene doping and gene manipulation could affect horse racing going forward, and how to test for it.

Breeders' Cup/Eclipse Sportswire

TDN: Knowing what you know, how prolific is gene doping and gene manipulation in the sport?

RA: Right now, there is no evidence that it is being used. However, this is an area that has made leaps and bounds in advancement since we started the IFHA gene doping subcommittee five, six years ago. It's an entirely different environment today.

I do think there are potential risks in terms of getting genes or administering genes to horses. The real problem with gene doping is it's easy to get a gene in a horse, but it's not easy to get it to do what you want it to do. Well, that's true of even gene therapy and other uses of gene manipulation.

Having said that, I do think it's a bigger risk today than it was five years ago. And there is a lot of advancement in this area that caused us concern. But as of right now, I know of no instance internationally of gene doping being used in horse racing. That doesn't mean it hasn't happened. That doesn't mean it's not going on. We're looking for it.

TDN: In the last month, The Washington Post has come out with a couple of reports, in one of which it's alleged that trainer Bob Baffert used political coercion against you to influence the outcome of your investigation into the series of sudden deaths among his trainees between 2011 and 2013. In the final report, you concluded that although the blanket prescribing of thyroxine to all Baffert horses does appear unusual, “The fatalities remain unexplained and there is no evidence whatsoever CHRB rules or regulations have been violated or illicit activity played a part.”

You told the Post the two things–the political pressure and the report's findings–were unrelated. If you were to conduct the investigation today, would the findings and the outcome be any different?

RA: No. If you look in the necropsy reports that are up on the CHRB website, you'll see that there's all different sorts of explanations that are associated with some of the sudden deaths.

One of them was an anticoagulant rodenticide. We had a number of cases in California over the following years that were associated with anticoagulant rodenticide poisoning, including ponies, so it's not as if somebody was trying to drug a pony with rat poison. So, the real issue is that there were no violations of CHRB rules.

That does not mean that you condone the blanket administration of thyroxine. And certainly, if you look at my comments, either during the presentation at the CHRB meeting or in the report, Bob Baffert trains his horses hard. They were all on thyroxine. A number of them were on clenbuterol at the same time. And all of that, even though there's no violation of rules, really reflects on Bob Baffert's management of his stable.

If you look, there's actually a statistical analysis that shows this was not a random event, that there's something that was associated with those horses–whether it was Hollywood Park, whether it was Bob Baffert, whether it's the way the horses were managed, thyroxine, the entire program–there was something associated with those horses that put them at greater risk than the average horse. We just didn't know what it was.

TDN: Given the ethical framework that you abide by, how would you characterize the way Baffert managed his barn?

RA: The way the barn was managed was to win races–win big races with very expensive horses.

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TDN: Ethically–by your ethical framework.

RA: How would I best answer that question. It's not the way I like to see horses managed.

TDN: Since then, has the way in which he manages his barn improved?

RA: He actually quit using thyroxine before the report, after consulting with his own veterinarians about some of the things that were going on. I do think that they did change some management practices in the barn, but if you watch the way that Bob trains horses, he trains them very aggressively.

In fact, probably, and I've said this before, Bob Baffert really changed the way that horses are trained here. They're trained much harder than they were back 30 or 40 years ago when I started practicing. He works his horses very fast, very hard. And unfortunately, other trainers who try to emulate him don't have those million-dollar yearlings that can work 58 and change.

I think it used to be, everybody tried to emulate Charlie Whittingham, the way he trained, which was a more considered approach to training horses as compared to the Bob Baffert Quarter Horse style of training.

TDN: Do you think that change ultimately has been for the better or to the detriment of the Thoroughbred racehorse in California?

RA: I'm a big fan of Charlie Whittingham, Ron McAnally, Dick [Richard] Mandella. Those types of trainers.

Stay tuned for part two of this Q&A with Dr. Arthur.

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