Through several iterations of proposed congressional legislations in different political administrations, WHOA forged ahead, convincing The Jockey Club, Thoroughbred Owners and Breeders' Association, Breeders' Cup and other leading organizations to join its efforts. But WHOA never lost sight of its goal as stated in its original mission statement: USADA needed to be named by congress to oversee drugs in racing.

When Mitch McConnell finally saw the light and agreed to help his state's signature industry by embracing the idea of the federal legislation, he joined the effort for a final push that resulted in the idea of naming an entity, named the Authority, to deal with the Federal Trade Commission in setting up drug controls. The idea from the very get-to and through the rewritten federal law was to bring USADA on board to do their thing.

But between passing the legislation, seating board and committee members and drafting rules for drugs and safety, the Authority lost sight of its mandate and role in the process. Things that plague most political actions and serve as a stark reminder of the corruption to which many humans are capable of brought forth conflicts of interest and the weightiness of power. The Authority shockingly announced during the holidays that it had been unable to come to a meeting of the minds with Travis Tygart, the head of USADA. The newly formed group revealed that it was moving ahead to find an alternative overseer of drugs in racing. 

Conflicts of interest? Abuse of power? Money up for grabs? Really? Yep. Really.

I will save you all from having to read the rest of this and get right to the point: USADA is the only group with the brand, gravitas, respect and tools to save the sport of Thoroughbred racing. Yes, there are other groups that could address testing, investigations and education, but in total none of them has what USADA brings to the table. 

Jeff Novitzky, a storied federal investigator who graduated from breaking open the 2002 BALCO scandal and currently is in charge of athlete performance for the Ultimate Fighting Championship, is a board member of the Authority. He is potentially an important player in determining who gets the nod to oversee drugs in racing, as he actually has experience in hiring USADA to work on behalf of the UFC.

As explained by Novitzky, there are ultimately three tasks that need to be addressed by any anti-doping organization, namely testing, investigation and education. Interestingly, he said that education is perhaps the most important, as it involves an authority figure such as Travis Tygart being able to educate athletes as to how sophisticated and thorough USADA can be in its job. Novitzky says that this aspect of the triple-pronged approach has formed an effective deterrent to cheating by his athletes. Novitzky said that it is possible to find outfits that could do testing and investigation, but very challenging to find a group that could educate the participants like USADA. That is a difference maker for him.

The reason that WHOA and I have pushed so hard for USADA is that a totally independent group is essential in allowing the game to function and give fans and competitors alike the confidence that the sport is on the level.

Here is why an independent group is needed. In a game dominated by super-wealthy, powerfully-connected participants that operate their enterprises on a win-at-all-costs ethos, only an independent body is able to withstand the onslaught of a corrupt individual to assist them in breaking the rules.

In today's environment, within the confines of racing (and not including the Federal Bureau of Investigation), powerful individuals who get caught breaking the rules always seem to find a get out of jail free card. 

The reason so many horsemen and owners seem to be against USADA's involvement in racing is that their reputation has preceded them. They are incorruptible and this scares the crap out of them.

However, with USADA now set to be totally bypassed in favor of some other organizations that have been mentioned, independence will be thrown right out the window and all of our efforts will have been for naught, because the bad guys will have won again and nothing will have changed. Right now forces that want the appearance of change, but behind closed doors actually embrace the status quo, are calling the shots.

Forces working against USADA include those with conflicts of interest. Among them are Authority members that have existing affiliations to other anti-doping doping agencies, rival testing labs lined up for a big payday and individuals pulling any strings they can find to keep USADA from becoming the top cop on the block. There is a lot of money involved and more than one testing lab or doping agency that would like to get their piece of the pie. Cronyism, regional muscle flexing and a good old-fashioned money grab characterizes the battlefield today.

It says here that the Authority has lost sight of its role in the process and that a combination of egos fueled with new-found power, members swayed by passionate enemies of USADA and lots of money up for grabs has corrupted what should have been a simple task. And for all appearances it looks very much like those empowered to guard the palace gates want to ascend to the throne.

Barry Irwin is the founder and CEO of Team Valor International

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“If the USADA/HISA business arrangement does not get done, I cannot imagine that horseracing and breeding has a future in the U.S.,” Hayward wrote. “While this is not a problem of anyone's making on either side, the harsh reality is, if the two parties cannot find a clear path forward, there are no 'other leading independent enforcement agencies' that can properly fill the void.”

Citing the federal investigation that led to the high-profile arrests of trainers Jorge Navarro and Jason Servis, Hayward argued that the individual state racing organizations have proven they are unable to police the sport effectively.

In addition, Hayward argues that the USADA was poised to take a “broader role” than simply enforcement. He cited the USADA's statement in it's 2020 annual report: “USADA has been assigned the anti-doping responsibilities detailed in the [HISA] Act and will implement uniform rules through an independent model in service of clean competition and participant safety. Throughout 2021 and beyond, USADA and the relevant authorities will establish and manage a robust system that includes education, testing, results management and investigation.”

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Here are some takeaways from the day's presentations and discussions, which included four segments focused on HISA, a keynote address from new National Thoroughbred Racing Associations president and CEO Tom Rooney, and a high-powered panel featuring the top executives of four major racetrack organizations: 1/ST Racing (The Stronach Group), Del Mar, Keeneland and the New York Racing Association.

HISA Drug Testing Will Be Phased In

Charles Scheeler, the chairman of HISA, outlined the progress the organization has made during a very compressed timeline from passage of the legislation in December 2020 until its mandated launch July 1. A board of directors and chairman was named in May 2021, interim staff including a CEO was hired in July, when meetings and collaboration with the presumed enforcement arm, the U.S. Anti-Doping Agency (USADA), began. In September, stakeholder talks started, along with meetings with current state regulators. HISA presented its draft of proposed safety regulations to the FTC on the eve of the Symposium. It requested and received a waiver from the FTC to delay submission of proposed anti-doping and medication policies for at least 10 days (until Dec. 16). Draft anti-doping/medication regulations shared with industry organizations were met with considerable feedback. The FTC will conduct public register review in January and February and the rules must be approved by March 1 – four months in advance of HISA's launch.

Scheeler said the final regulations approved “will not be perfect” or “written in stone.”

When HISA does begin operations on July 1, it will only conduct out-of-competition testing, leaving post-race testing and adjudication of any violations from those tests in the hands of the state racing commissions for the rest of the year. Scheeler said HISA would take over post-race testing on Jan. 1, 2023. HISA would adjudicate any violations detected from out-of-competition tests.

Scheeler said HISA also hopes to work with racing commissions when it begins post-race testing to use existing personnel for race-day blood and urine collections, adding that if something isn't broken HISA is not interested in fixing it.

Technology And Big Data Will Be Critical

Scheeler and Dr. Susan Stover, a HISA board member and chair of the Racetrack Safety Committee, spoke about the importance of technology and data to HISA's success. The “transformational database” referred to by Scheeler would include information on both covered persons and covered horses and provide trainers and owners an interface to report whenever a horse's location changes, an important component for out-of-competition testing.

Stover, whose breakthrough research at the University of California-Davis has led to greater understanding of injury prevention, said the opportunity to collect comprehensive data is extremely important for racing to reduce the rate of fatal or serious injuries and for the sport to maintain what she called its Social License to Operate (SLO) with the public.

Stover pointed out that the United States has in recent years reduced its rate of fatal injuries per thousand starts by 40% but still has a rate higher than in the United Kingdom, Australia/New Zealand and Hong Kong. “We have work to do,” she said.

Dr. Sue Stover (right) and Ann McGovern

Fatalities aren't the only concern to Stover, who said 3% of horses at the tracks are taken out of training each month, an attrition rate she estimated costs nearly $82 million to horse owners every month.

Some form of pre-existing condition was detected in almost 90% of fatally injured horses she has examined over the years, Stover said. Factors that led to increased risk included corticosteroid injections, recent lameness and abnormalities in pre-race exams. Stover said data collected on training intensity (speed works at longer distances) may help HISA develop best training practices, especially for horses coming off layoffs.

Racetrack accreditations by HISA will be phased in, with tracks currently accredited by the NTRA getting an interim three-year accreditation with HISA, provided they make good faith efforts in certain areas and adhere to data reporting requirements.

Ann McGovern, a racetrack safety committee member, said in response to a question from the audience that tracks that fail to be accredited will lose their ability to conduct interstate wagering.

HISA/USADA Price Tag Remains a Mystery

Scheeler said HISA was not yet in position to submit a budget for HISA operations, in part because it does not have a contract with USADA. Costs, he said, would also depend in part on how things are worked out with state racing commissions. “It will cost money,” Scheeler said, “but this is an investment.” He compared the industry's failure to advance safety and anti-doping programs to bridges and roads crumbling because of the lack of infrastructure investment. Some of that investment will be in what Scheeler described as a “powerful and rigorous investigation program” similar to the 5Stones Investigations unit hired by The Jockey Club that investigated many of the trainers, veterinarians and drug suppliers who were indicted on federal charges in March 2020.

In a separate panel, Ed Martin, president of the Association of Racing Commissioners International, said language in the bill that created HISA was flawed because it does not require state racing commissioners to help with funding. “They made a mistake with this bill,” said Martin. “They allowed the states to walk away.” Martin suggested that state budget directors will withdraw funding for horse racing regulations and drug testing once they find out they aren't required to help fund HISA.

Therapeutic Medication List Still Being Developed

A group that included Adolpho Birch, HISA board member and chair of the Anti-Doping and Medication Control Committee, reviewed how medication violations will be adjudicated, separating primary (most serious) and secondary (therapeutic) drug positives.

Jeff Cook, general counsel for USADA, said a goal will be to adjudicate cases more quickly: four weeks when doping violations for secondary medications are challenged and eight weeks for primary drugs. A national stewards panel will adjudicate the secondary cases with an arbitrator used for the more serious violations. Cases can also be appealed to an FTC administrative law judge.

Two notable changes from the current process are that split samples would not go to a lab of the trainer's choosing and public disclosure of complaints may come as soon as the trainer is notified.

Birch, general counsel for the Tennessee Titans, served previously as the NFL's top anti-doping officials and helped draft the league's drug policies. Birch said the NFL was struggling with controlling the widespread use of performance-enhancing drugs, with some players dying from drugs and others feeling the need to cheat to compete. “If we didn't change,” he said, “the sport was going to suffer irreparably.”

Dr. Tessa Muir, USADA's director of equine science, said the HISA Anti-Doping and Medication Control Committee is still in the process of drafting a therapeutic medication list and screening limits for those drugs.

Mr. Rooney Goes Back To Washington

In his keynote address – his first as NTRA president and CEO – former Florida Congressman Tom Rooney said his mission will be to represent the horse industry in Washington, D.C., where he served five terms in the House of Representatives, from 2009-'19.

Rooney succeeds Alex Waldrop, who served as NTRA chief executive for 15 years. Waldrop was honored on Tuesday by the Race Track Industry Program with the Clay Puett Award for outstanding contributions to the industry.

From a family that owns the NFL's Pittsburgh Steelers and has been involved in Thoroughbred, Standardbred and Greyhound racing, Rooney brings a solid resume to the position. As a former member of Congress, he understands how important it is to have an industry representative in the nation's capital.

That's never more important than today, he said, referencing high profile events like the sudden death of Medina Spirit, the first-place finisher in the Kentucky Derby, and the fact that “our opponents have not gone away and they never, ever will go away.”

Incoming NTRA president and CEO Tom Rooney

Rooney's family owns the Palm Beach Kennel Club in Florida, where Greyhound racing was recently eliminated in a state-wide vote.

Rooney said he will work to support a smooth transition to HISA, help racing benefit from sports betting and maintain favorable tax benefits for horse owners.

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As the one who got the ball rolling in a 2004 Op/Ed in The Blood-Horse by urging industry members to consider a way of hiring the U.S. Anti-Doping Agency to oversee drugs in horseracing, I must at this early juncture in the start-up of the Authority register my fears regarding the ultimate success of the new entity and its potentially sweeping changes.

Germination for wishing to get USADA involved in the struggle to rid cheaters from the game was to use CEO Travis Tygart and his team to devise a plan to form an investigative unit capable of discovering through traditional and new-wave policing methods which designer and human drugs were being used to tilt the playing field in North American racing.

If the world of international sport had learned one thing from the 2002 Bay Area Laboratory Co-operative (BALCO) it was that testing was best used not to apprehend suspects but to confirm that they were cheating. The gold standard in catching the crooks was by finding the actual illegal substances first, then developing a test and using that test in the future to nail the bad guys. Testing without knowing what one was testing for was like trying to find a needle in a haystack.

Good old-fashioned cop grunt work and sophisticated FBI-style surveillance is required for the best results. In the eyes of those individuals who formed and drove the Water Hay Oats Alliance, it was foremost in mind that Tygart would use his agency's skills to offer relief to racehorse owners who played the game straight and true.

However, other initiatives, introduced by other stakeholders with alternative agendas, have gotten in the way and now threaten to derail the Authority from their original appointed rounds. And adding further insult to injury, everybody with an agenda is making noises about the Authority widening their sphere of influence by tackling such areas as pari-mutuel wagering.

The last thing HISA needs is to be accused of overreach by encompassing an agenda that goes too far afield from its original mandate. HISA was never envisioned as a so-called “league office” or end-all and be-all to govern the entirety of racing.

HISA is basically divided into two aspects of racing: integrity (preventing cheating) and safety (protecting the horse). While I am extremely interested in protecting the welfare of racehorses, I was personally disappointed in its inclusion in the final legislation, as I thought it could be handled better outside the confines of the law and because it detracted from the focus on cheating with drugs.

I daresay that very well may have been the intention of those proposing and supporting the safety element of the legislation. But I fully understand that with any sort of seminal legislation there must always be compromise and I am positive that without the safety aspect, Churchill Downs would never have been able to use its influence to convince Kentucky Sen. Mitch McConnell to back the bill.

In reviewing the Authority's releases so far and in reading reports in the media as well as interviews with key members of the Authority, it seems likely to me that testing for illegal substances is being given too much weight, as opposed to investigations. If this turns out to be the case, it would be a misguided, potentially detrimental and disheartening.

I understand why the “safety” advocates pressed so hard to have their initiative appear to be on an equal footing with “integrity.” By shifting the focus away from a single-minded attempt to zero in on drugs, the “safety” crowd hoped that racing would not be placed in a negative light. I get it. I do not agree with this gambit, but I understand it, especially where a major racetrack is concerned.

But unless the industry as a whole is ready to tackle cheating with drugs head on, the specter of altering the results of racing will never cease.

So this is my pitch to members of the Authority, no matter what side of the fence you are on, no matter how you managed to get your seat on the boards and committees and no matter what your agenda: please do all in your power to make sure that Travis Tygart is given adequate funding to carry on investigations that will yield the type of results those of us who have committed our lives to cleaning up the game can feel that all of our work has been worthwhile.

This message is not directed at USADA. It is not directed at Travis Tygart. It is directed at those individuals who may seek to over-fund their own aspects of the legislation.

Without a robust investigative force that is fully funded this entire initiative will fail and HISA will go the way of all other alphabet soup groups in racing. This is our one last chance to get horseracing right, correct the wrongs on the racetrack and clean up the game enough to present it as a viable sport to fans and horseplayers. We owe them that much.

Barry Irwin is the founder and CEO of Team Valor International

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Earlier this week, in consultation with the U.S. Anti-Doping Agency, led by CEO Travis Tygart and Dr. Tessa Muir, USADA's director of equine science, HISA published a draft set of definitions, medication protocols and a list of prohibited medications.

The public has an opportunity to comment and offer feedback on those proposed rules before they go to the Federal Trade Commission next month for a second round of public comment and eventual approval by the FTC.

It's clear, from the proposed rules and comments by Tygart and Muir in a series of media interviews, that racing is in for some significant changes.

Gone will be the good old boy community of racing commissioners with conflicts of interest involving some of the people they are regulating. It is hoped the cavalcade of attorneys appealing fines, suspensions and disqualifications on behalf of trainers will grind to a halt as well, with strict, understandable and loophole-free regulations in place when the transition to the Authority occurs next July.

But first, some caveats.

USADA has yet to sign a contract with the Authority as the enforcement agency for when HISA goes into effect. Tygart and Muir have been instrumental in meeting with HISA committees and staff in developing the rules, and Tygart said USADA is ready to become the enforcement agency IF the final regulations approved by the FTC are “good rules that we can stand by.”

In other words, Tygart is not going to risk USADA's brand or his own good name on a mission if it is hijacked by people who are successful in watering down the rules.

There are also the lawsuits by horsemen's organizations in opposition to the federal legislation that created the Authority. These have yet to be resolved in court. Tygart calls them obstructionists who hope to delay implementation and cause the Authority to burn through limited financial resources.

“We fully anticipate those groups or individuals who have always been opposed to a new uniform policy being in place and independent, robust enforcement of those policies, that they're going to continue to try and obstruct it at every turn,” Tygart said.

If the legal challenges are defeated and USADA becomes the enforcement agency, this will be a different, cleaner game played on a more level field.

For starters, no medications will be permitted by statute for 48 hours prior to race day. A robust out-of-competition testing program will be phased in with “whereabouts” requirements for all horses registered with the Authority. That means if horses are removed from a racetrack stable area, a trainer must notify the Authority where that horse is going so that out of competition testing can be conducted. Violations of the whereabouts rule will be dealt with severely.

So will positive tests for prohibited substances that are now dealt with in many states with a slap on the wrist. For example, primary substances – those that should not be in a horse's system at any time – found in post-race or out-of-competition samples may result in suspensions of up to two years. Included in that group are anabolic steroids, blood-doping agents and clenbuterol.

Non-steroidal anti-inflammatories would fall under secondary substance rules that can be met with a 30-day suspension and fine. However, trainers who pick up four of those violations over a five-year period may be suspended up to two years.

And any positive drug test will result in automatic disqualification of that horse from a race.

“For the integrity of racing from the results standpoint, the disqualification of the horse is automatic,” said Muir. “We would take into consideration any mitigating circumstances, with respect to the fine or suspension.”

The days of Bute overages being looked upon as minor violations akin to a parking ticket will be over. Trainers who have been willing to take an edge or have sloppy medication oversight will need to clean up their acts.

A key element of HISA's anti-doping program will be intelligence and investigations that result in “non-analytical” cases where the evidence is something other than a positive drug test.

“The Navarro indictment showed that they were using things they know or believe not to be detectable by current testing methods,” Tygart said. “So if you say you have to have a positive test to be held accountable, you've just given a license to people to go use things there aren't tests for, because science is limited to a certain extent.”

Tygart and Muir both believe whistleblowers will be an important part of the program and said USADA has been receiving tips on wrongdoing for several years since the agency was first mentioned as part of the federal legislation. The draft regulations include language protecting whistleblowers and charging anyone who intimidates a whistleblower.

“The principle there is it takes a community of people who benefit from having good rules that protect their rights,” Tygart said. “Hopefully they will trust whoever the enforcement agency is. If it's us, we will work hard to gain that trust like we have in our human sports to bring forward information and then act appropriately based on that information.”

Long delays in the resolution of cases is another problem the current system has permitted through appeals to the commission and the civil courts. Under HISA, all “covered persons” (including trainers) will need to register with the Authority and in so doing agree to the rules, including an arbitration process that Tygart said has worked well with human athletes. USADA enforces medication rules for Olympic athletes and UFC fighters, among others.

“There are so many loopholes in how the current system works and (trainers and their attorneys) can win,” Tygart said. “Part of this process is to shut the legal, technical loopholes that people can exploit. My guess is a lot of the defense counsels out there who have made a living out of trying those cases are going to be frustrated because they are not going to win many cases, as they shouldn't. Justice should be served, and we don't look at that as a win or a loss.”

As such, under the proposed rules, if a trainer and USADA do not come to a mutual agreement on a resolution and sanctions for any violations, the case goes to an impartial arbitrator or independent steward panel, to determine an outcome.

“We resolve 95% or more of our cases in the human program (without going to arbitration),” Tygart said. “That's historically true because people know that if you break the rule, we're going to be fair in the ultimate consequence and take into consideration the individual facts to get to a fair outcome. People recognize that if you do something wrong, the best thing that you can do, honestly, is to take responsibility for it and not waste your time or their time to get to the inevitable. … People are willing to forgive and move on. What people don't like is those who make excuses or continue to lie or try to cover up their doping, and I think that principle will play very well here because the rules are not going to allow people to exploit them in the way they are currently being exploited.”

Tygart added, “When you sign up to be a 'covered person,' you agree to the rules of the game. If you don't like the rules, you don't have to play.”

Racing has needed a new sheriff for some time. It may finally have found one.

That's my view from the eighth pole

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As prescribed by the Horseracing Integrity and Safety Act of 2020 (HISA), USADA has led the drafting process for the Anti-Doping and Medication Control Program. Three of the six documents pertaining to the Anti-Doping and Medication Control Program, including the proposed Equine Protocol, Prohibited List and Definitions, have been posted for public comment. The remaining documents, which include Equine Arbitration Procedures, Testing and Investigation Standards, and Standards for Laboratories and Accreditation will be published over the next two weeks.

In addition, and separate from USADA's work, the Racetrack Safety Program, which is made up of expanded veterinary exam protocols, enhanced racing and training requirements, minimum standards for surface maintenance and testing, and uniform reporting requirements has also been posted to the Authority's website for public review.

USADA and the Advisory Committees will review and incorporate relevant public feedback on the recommendations and submit them to the Authority's Board of Directors for approval. Following the Board approval process, the Authority will present its final proposed rules to the Federal Trade Commission (FTC) in early December. This will then initiate a formal notice and comment rule-making process during which stakeholders and the general public may once again weigh in by submitting comments for a 60-day period, after which the FTC will publish final regulations.

“We are honored to be involved at this stage to help draft and ultimately finalize gold-standard rules on anti-doping and medication control for the equine industry,” said USADA CEO Travis T. Tygart. “We are excited with where this process is headed and with proposed rules being published for two additional rounds of public feedback.”

“The rulemaking process is still underway, and we encourage experts, other industry stakeholders, racing fans and the general public to review and comment through our website. Although the final decision on which regulations will be approved and implemented ultimately lies with the FTC, we want to ensure that any interested party has the opportunity to offer their perspective and input,” said Charles Scheeler, Chairman of the Authority's Board of Directors. “While the FTC will authorize the final set of rules for the official launch of the Authority in July 2022, it is the Authority's full intention to continue to work with the industry to evolve and improve the rules beyond that time.”

Please visit hisaus.org to view and weigh in on the proposed regulations and follow the Authority on Twitter and Facebook to keep up with the latest developments.

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“I think it should be night and day because the current system is a myriad, a patchwork of different rules and regulations and it's not applied evenly across any of the 38 different racing jurisdictions,” Tygart told Wolken. “Our hope is to absolutely professionalize it and give those in the sport confidence that it works and that there is no choice other than to win the right way, which is clean and ultimately that's going to benefit the sport itself as well as the health of the animal.”

Two scandals within the racing industry this year involving Bob Baffert's four separate medication violations and the FBI probe that led to 27 people being indicted for illegally conspiring to dope racehorses have amplified the need for intervention from the government and the USADA. Wolken wrote. An independent oversight program can eliminate the conflicts of interest within the current state horse racing boards, which are typically occupied by people with financial interests in racing or involvement in some way.

“it created a perfect storm where there's no other solution,” Tygart said. “The status quo is unacceptable and this is a monumental step in the right direction.

“There's a lot of money being made under the status quo and we saw that when we took over the Olympic world as well,” Tygart told Wolken. “So are we going to be able to get people off their little fiefs that are churning money? Let's hope they come along and get on board, but if they are earning that money the wrong way they're going to get sanctioned and that's the way it ought to be.”

Read more at usatoday.com.

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