Joint Response to Draft Anti-Doping and Medication Control Protocol and Related Proposed Regulations
Horseracing Integrity and Safety Authority
Attention: Lisa Lazarus
On behalf of the Thoroughbred Horsemen’s Associations Inc., Kentucky Thoroughbred Association, Thoroughbred Owners of California, and Thoroughbred Owners and Breeders Association collectively, we thank you for affording us the opportunity to review and provide initial comment on HISA’s proposed Anti-Doping and Medication Control Protocols, the Prohibited List, Equine Testing and Investigation Standards for Laboratories and Accreditation and Arbitration Procedures. As previously done with USADA’s proposed anti-doping program, we have established a diverse group of experienced horsemen, regulators and veterinarians to review the extensive documents. This letter and attachments are our best effort to preliminarily identify general and specific issues with the drafts in the short time frame afforded to us.
Each reviewer provided written comments and they are attached. We also met collectively on two occasions to discuss our general thoughts. They are reflected herein. We trust that you will view our comments as constructive recommendations that attempt to identify shortcomings or potential challenges that would benefit from further review and discussion. A limitation of this process exists because of the truncated time frame within which we have been asked to respond, we have not been able to sit down with working groups of our members to review the drafts.
On a regulatory scheme as important as this and given criticism we are already receiving from some of our constituents, we think a more deliberate approach is required, and we urge HISA to allow sufficient time for this to occur. Further, we urge HISA to engage with our review team to discuss our specific preliminary concerns in an effort to better understand the basis for some of the proposed regulations and discuss to them more fully.
We trust that HISA will take note that our groups have been intimately involved in doping and medication control issues, having developed what became the National Uniform Medication Program, and we are well versed in these issues. We are pleased and encouraged that HISA recognizes, as reflected in these new drafts, that there is a material distinction between the doping of horses with prohibited substances to affect the performance of a horse and damage the integrity of fair play and the use of recognized therapeutic substances necessary for the treatment of illness or injury in the horse or for the horse’s general well- being.
Fundamental to HISA’s program should be an understanding that medication control and the health, safety and welfare of the horse are inextricably linked, and that medication management errors do not constitute doping. We urge HISA to continue to incorporate as much of racing’s current regulatory scheme regarding doping and controlled medication as possible to ease compliance, while at the same time addressing those area of current practice in need of reform.
While we have numerous questions, we commend HISA for its revised approach to medication regulation, which we think is far more consistent with current practice than what we have previously seen. In this instance, we think it best to highlight our general comments that we ask HISA to reconsider, while hoping that we will have the opportunity to engage with you more fully in the near future. Our comments follow in no particular order.
Racetrack vs Training Facilities:
There is substantial confusion with the applicability of requirements for racetracks and training facilities. The inclusion of training facilities in the statute was designed to ensure that horsemen could not evade the requirements for racetracks by simply stabling at training facilities. HISA needs to revisit this concern and provide clear guidance on what is permitted and prohibited at training facilities and how such facilities will be regulated. HISA also needs to recognize that access to veterinary care at training facilities, owing often to distance, or staffing differences, is different than in the racetrack environment. It is also our recommendation that HISA register and publish an official list of training facilities that are subject to the jurisdiction of HISA.
Lasix Prohibition for 2-Year-Old and Stakes Horses in Training
We vigorously object to, and oppose, any attempt to prohibit the use of Lasix in the training of our horses. We previously objected to such a proposed prohibition when USADA released its Prohibited List as inconsistent with the statute and not in the best interests of the health and welfare of the horse. There is simply no basis for such a prohibition, nor is it scientifically supported. The statute affords the opportunity to HISA to study whether such a prohibition should apply based upon solid scientific evidence which currently does not exist. If HISA wants to ultimately prohibit the use of Lasix for horses in training, we suggest that it include this issue in the Lasix study to be conducted by the blue-ribbon scientific panel.
The Lists of Controlled Substances and Specified Substances
Our comments are hamstrung by the continued failure of HISA to provide the industry with the list of Controlled Medications and guidance regarding their use. As we have very few, if any, doping violations in racing and the vast majority of violations in racing involve the use controlled therapeutic medications used for the benefit of the health, safety and welfare of the horse, it is essential that we be provided with this information. The same applies to the so-called Specified Substances, as we know that there are Prohibited Substances that may be introduced into the horse via contamination that need to be identified, as well as Prohibited Substances for which a Therapeutic Use Exemption should be provided (See attached ARCI List of Required Conditions for Restricted Therapeutic Use).
The distinctions between Prohibited Substance, Specified Substances and Controlled Medications will be crucial to the success of the program. By way of example, we have included summaries of Mid-Atlantic medication violations for 2019-2021. We suspect that while these results are similar to violations that occur in other jurisdictions and regions, no other region compares to the volume of tests that are conducted annually in the Mid-Atlantic. Region. Only a handful of cases each year would be considered “doping offenses”, and of these, virtually everyone involves a substance that we believe would be considered a Specified Substance because of contamination, but we don’t know. The success or failure of the HISA Anti-Doping and Medication Control Program will be determined, in part, by its approach to, and handling of, Controlled Medication and Specified Substance violations, as this will have the greatest impact on owners, trainers and the image of the industry.
While we understand the vigorous requirements and due process protections afforded in a case involving “doping/ Prohibited Substances”, we suggest that such cases will be few and far between. On the other hand, imposing similar requirements for Controlled Medication violations is unnecessary, onerous and untenable, and they will have the effect of chilling any opportunity for a horseman to have due process for a routine violation. In current practice, most violations are resolved at the Stewards level, with no need for lawyers, legal filings, expert witnesses and needless costs. HISA’s rules will have every violator seeking legal advice and incurring costs for mandatory briefs and legal filings that will be cost prohibitive. This could also negatively affect ownership. While we suspect HISA believes that most Controlled Medication cases will be resolved administratively, there should be no mandatory filing requirements should the horseman choose to have a hearing before a Steward or arbitrator. Further, the cost having a hearing should not fall on the offending horseman. The process of resolving Controlled Medication cases needs to be simplified.
We trust that HISA realizes that cases involving Prohibited and related Substances that are not and would not be used in the treatment of illness or injury but get into horses through contamination cause the highest degree of anxiety among owners and trainers. We find that in most, if not in all of these cases, the trainers are longstanding and reputable licensees who are victimized because they could not have prevented such occurrences. These violations, if not resolved in a confidential and expeditious manner, can be unnecessarily career ending and drive owners from our sport.
Further, and more generally, although we understand the need for transparency, it cannot be at the expense of owners and trainers, who are entitled to have their reputations protected until due process is afforded. We know of no sport that publicizes violations before due process is accorded. Indeed, in the international performance horse industry, violations are not publicized until a ruling is issued, and even with that, owners recoil at having their names associated with a drug violation. We urge HISA to be mindful of these concerns and not overreact to current industry matters that are still pending.
Drug Testing of Claimed Horses
It is unclear whether HISA will require all claimed horses to be drug tested post-race. These horses are required to be taken to the test barn to be observed. If it is HISA’s intention to drug test all claimed horses, we think it is a costly mistake and untenable. New York’s pre-HISA requirement in this regard is instructive. Not a single claimed horse has tested positive, but the cost of doing so has been a waste of time and money, funds which could have been used for far better purposes. Further, given that a claimed horse is transferred immediately and a drug test may take several weeks, voiding a claim could result in chaos involving the horse and unnecessary litigation. For example, if an intact male horse is castrated after being claimed, his return to the original owner if the claim is voided would certainly be contested.
Many horses travel great distances to race. If a claimed horse is shipped across the country following a claim, who would be responsible to pay to ship the horse back to the original owner? While we think the requirement should be abandoned, if HISA believes it is important to retain, we suggest that drug testing be conducted only at the request of the claimant and at his/her expense, and that such a claim be voidable at the option of the new owner if the positive test is for a Prohibited Substance.
Stewards and National Stewards Panel
We previously commented on this nomenclature and do so again. We fail to understand the need for HISA to use this nomenclature, since it conflicts with state and local stewards whose daily role is to regulate races and the racetrack environment. By way of example, the HISA reporting requirements for shock wave therapy are through the existing stewards at the racetrack. It appears that HISA envisions a different set of enforcement officials for its Stewards and National Stewards Panel, particularly as it relates to Doping and Controlled Medication cases. There is considerable confusion on this among our constituents and we cannot explain it. We urge HISA to change its nomenclature. For example, HISA might want to use the terms “Adjudication Officer” and “Adjudication Panels.”
Retirement of Horses
We do not believe that HISA should have any role in determining that a horse should be retired nor is there any authority for it to do so. If HISA believes otherwise, there should be an industry discussion as to its appropriate role.
Responsibilities of Veterinarians and Other Covered Persons
We have said this before and do so again. The thrust of HISA, including the Safety Program, puts all the emphasis on owners and trainers when there are other covered persons who should bear significant and similar responsibility for medication violations. In this regard, we point directly to the veterinary community and the racetracks. HISA needs to put more emphasis on the veterinary-owner-trainer relationship and hold veterinarians accountable for their role in doping and medication cases. Similarly, where racetracks can provide support and authority, particularly security, and fail to do so, there appears to be little accountability. We strongly urge HISA to recognize that a successful anti-doping and safety program is a shared responsibility with shared consequences. For example, the New York State Gaming Commission recently penalized NYRA officials and a Lasix veterinarian employed by them for failure to perform their responsibilities. We do not see a similar intent in the documents we are reviewing.
ARCI Penalty Multiple Medication Violation System
The statute requires HISA to use as a baseline, ARCI’s Penalty System and the MMV System. We do not see them in the documents. It is important for owners and trainers to know what HISA’s penalties will be. Further, the MMV system is one of the great advances that emanated from the Mid-Atlantic. Since its inception eight years ago, only two trainers have been given additional suspensions for points based on multiple positive tests. We have virtually eliminated this problem, which was identified as one of racing’s biggest problems 10 years ago at the International Medication Summit at Belmont Park. We trust that HISA plans to use this system.
As HISA works through the numerous bugs and hiccups with its registrations system, we can only imagine the problems that will occur as horsemen seek to comply with the mandatory reporting requirements. We urge HISA to go slow here, as we suspect there will be significant issues with compliance as systems are developed. We know because we are all being inundated with registration issues. Further, the rules place significant burdens, particularly concerning “whereabouts”. Since the vast majority of horses are located at racetracks, why can’t this burden be shared with racetracks who already have “in and out” protocols systems in place that would work to help keep track of the location of individual horses, or alternatively, provide a list of private, third-party digital providers who comply with HISA’s requirements.
Suspension of Horses
Covered horses should be allowed to train should they be suspended. To do otherwise increase the length of a suspension and is not in the best interests of the horse’s health, safety, and welfare.
The decision as to who is the Designated or Managing Owner of a multi-owner entity should rest with the entity and not HISA. There is no requirement that a Managing Owner has to own at least 50% of the entity. The only requirement should be that such individual must be licensed by a racing commission and registered with HISA. Further, what is the basis for the requirement that a person who owns more than 3% of a horse must register. In many states, there is no such requirement.
Collection of Urine
What is the protocol if a horse will not urinate for a drug test. How long will such horse be required to remain in the test barn? In a high tempo environment, horses cannot remain in the test barn indefinitely for one or more horses to pass urine. We recommend that you consider a provision to allow a problem horse to return to the trainer’s barn under direct supervision of a regulatory inspector to collect a urine sample in that horse’s own stall.
Definition of Race Day
HISA should recognize that many horses are treated post-race to aid in their recovery from the race. The definition is too narrow and does not afford the opportunity for such treatment, which is in the best interests of the health and welfare of the horse. The definition needs to be revisited. It is more appropriate to either designate the 24-hour period leading up to the published post time of the race to be the definition of “race day” or to designate the period of 12:00 AM through post time of the race as “race day.”
Official Timed Works
The definition of “official timed works” is not consistent with current practice. Many training centers provide published works but not by an “official clocker”, which has repeatedly been referenced as the differentiating factor for “official timed works.”
Search and Seizure
With respect to search and seizure under the Investigative Standards regulations, we ask that the language be clarified to be consistent with HISA’s proposed revised standard.
Evidence-Based Support for Regulations
We understand that HISA is required to submit to the FTC the scientific or other support for regulations it seeks to adopt. We urge HISA to do the same when seeking industry review and comment on draft regulations. The Anti-Doping Program is a textbook example of the need to provide such information for the industry to gain a better understanding of the basis for regulatory changes. We will have additional questions and comments and anticipate receiving many questions and comments as our constituents review the proposed regulations. We appreciate you giving us the opportunity to comment and hope that you will take the time to interact with us before issuing formal proposed regulations.