The following open letter to the industry was penned by Darrell Vienna, attorney at law, and distributed by the National Horsemen's Benevolent and Protective Association:
As HISA continues to modify and revise various parts of its rules (1), one critical area has been allowed to continue its destructive effect on horse owners and their horses. This harmful oversight needs to be modified immediately. Or better yet, yesterday.
Under current HISA rules, horse owners are being or will be deprived of their constitutional right to the use and enjoyment of their property. If the initial sample collected from a horse tests positive, the horse may be declared ineligible to race for the horse's lifetime without any opportunity for the owner to be heard or present evidence. There presently is no review process for the owner under HISA rules.
HISA Rules provide for sanctions against both individuals (Covered Persons) and horses (Covered Horses). A Covered Horse is any horse that participates or engages in a workout or participates in races in jurisdictions governed by HISA. A horse which tests positive for certain substances, or has been subjected to certain prohibited methods, may be excluded from racing for period ranging from one month to life.
This exclusion from racing, which HISA calls a period of ineligibility, travels with the horse. Changing trainers or owners does not lift the ineligibility. The owner does not receive a hearing to challenge the decision – a decision that interferes with the use and enjoyment of his or her property. If the horse tests positive and the split sample is waived or confirms the initial finding, the horse may, depending on the substance detected, be rendered ineligible for the rest of its life.
Consider the following:
Scenario 1: A weanling is administered a bisphosphonate, a drug used off-label for treatment of sesamoiditis, by a farm veterinarian. The weanling is later purchased at auction by a first-time race horse owner. The horse is raced for the first time as a 2-year-old. The horse wins a race and the bisphosphonate is detected in the post-race sample. The science is clear. Once a horse has been treated with bisphosphonates, the substance may be detected for years. Pursuant to HISA rules, not only is the horse disqualified from the race, the horse can never race again because HISA has adopted rule 4310 which provides that the detection of bisphosphonates in any horse results in a lifetime ban, despite a lack of any evidence that the presence of bisphosphonates actually places horses at greater risk of injury.
Scenario 2: At the end of a race meeting, a trainer prepares to move his horses to race in another state. He is assigned stalls that are pre-bedded with straw by a feed company. One of the employees of the feed company takes metformin for diabetes — the third most commonly prescribed medication in the United States, with more than 92 million prescriptions. This feed-company employee relieves himself in the corner of one of the freshly bedded stalls. Days later the trainer puts one of his horses in the stall in which the metformin-taking feed-company employee urinated. The horse ingests some contaminated straw with his hay, causing a positive test in a post-race sample. The trainer is suspended and the horse is ineligible to work or race for a period of up to 14 months.
The owner who had no knowledge of the source of the prohibited substance is, without recourse or hearing, deprived of the use of his racehorse. Depending on the value of the horse, the owner may decide to sell or give the horse away. Since the horse has limited or no eligibility to race, its value is significantly diminished. What happens to these horses that are ineligible to race? Some may be retrained as riding or show horses; some may end up in unsanctioned match races; however, others may end up in killer pens awaiting slaughter.
HISA Officials have claimed that this rule is intended to promote horse welfare. Lisa Lazarus, CEO of HISA, has been recently quoted as saying, confusingly, that this rule is based on the length of time it takes for a substance to exit a horse's system2. Nothing could be further from the truth. This imposition of ineligibility on the horse is simply an unreviewable punitive action against horse owners that endangers the health and safety of horses while at the same time being euphemistically labeled by HISA as a measure to promote “horse welfare.”
Let's say, instead, that the owner chooses to keep the horse and race it after the 14-month ineligibility period is over. Research has shown that horses that do not engage in high-speed exercise for 30 days or more are at higher risk of fatal injury than horses that are in full training. The 14-month ineligibility period actually places these horses at higher risk of injury. The HISA argument of protecting horses is fallacious.
The obvious solution to this situation is to offer every owner a full review mechanism which comports with due process. Further, the horse's ineligibility should end as soon as the horse passes subsequent testing. In the meantime, if you are an owner, whether or not you have already been directly affected by this rule, you should voice your most serious objection to this harmful and unconstitutional power play by a clearly unaware HISA.
1 HISA rules are little more than a conglomeration of “cut and pastes” from the rules of the Fédération Equestre International, a European-based association which deals with Olympic horse competitions.
2 Ms. Lazarus is obviously trying to obfuscate the issue of a pharmacologically effective drug to the irrelevant possibility that benign remnants of a drug may show up in hair. Horsemen should not stand for this underhanded misdirection.
Darrell Vienna, for years a leading trainer in California, is an internationally renowned authority in equine law and all aspects of horse racing, regardless of breed or jurisdiction. In more than three decades of practicing law, the graduate of the University of California and Loyola Law School has represented or assisted horsemen in Arkansas, Arizona, California, Delaware, Florida, Kentucky, Massachusetts, New Jersey, New Mexico, New York, Texas, Utah, Great Britain, Hong Kong and Singapore. His efforts have resulted in numerous acquittals for licensees charged with violations of racing regulations. Vienna trained 1992 Breeders' Cup Juvenile winner and champion Gilded Time and Grade 1 winners Fly Till Dawn, Star Parade and Janet along with 64 other graded-stakes winners. His horses won 1,232 races and earned more than $50.6 million throughout his 40-year training career, during which he was licensed to train in 25 racing jurisdictions.
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