Ruling Could Affect Equine Drug Testing Regulations

A recent New York Supreme Court ruling invalidating that state's out-of-competition equine drug testing could have implications in other jurisdictions and in the Thoroughbred racing industry.

Out-of-competition testing is aimed at detecting prohibited substances--primarily blood-doping agents--that cannot be detected in post-race tests. Regulators say the drugs targeted by out-of-competition testing can be detected only for a short period of time, but can have a lengthy positive effect on a horse's performance.

The regulations usually contain parameters on the location of the horses to be tested, the date range from a race during which they can be tested, and the types of drugs for which they can be tested. As with most other regulations, they vary from state to state.

The horses subject to the testing usually have not raced for a certain period, are located off the racetrack premises, and are being considered to return to competition at some point.

In his Aug. 15 ruling, Acting New York State Supreme Court Justice Mark Powers ruled in favor of Standardbred Owners Association of New York and others who filed suit in early 2010 challenging the regulations adopted Dec. 15, 2009, by the New York State Racing and Wagering Board (NYSRWB).

Specifically, Powers found that the 180-day testing period under the regulation was "arbitrary, capricious, and impermissibly vague." Also, the provision that horses to be tested could be up to 100 miles from a state racetrack and outside the state's borders was arbitrary, Powers said.

He also noted the penalties were excessive, and that the regulation failed to limit the testing to blood-doping and related drugs.

"Having considered the parties' arguments, the (out-of-competition regulations) are so lacking in reason as to require nullification in their entirety," Powers wrote. "This court sees little progress offered by these (regulatons) to address the pervasive problem of performance enhancement. Indeed, the board may well be 'shoveling sand against the tide.'

"In this court's view, there is an inherent unfairness to adopting rules that sweep across an entire industry looking for one bad apple and subject to all kinds of abuses in implementation and enforcement and without any built-in protections for those affected and with disregard for their legitimate concerns."

With many other jurisdictions having adopted, or working on, out-of-competition regulations similar to those in New York, Powers' opinion should serve as a guide for a model rule that could be adopted by the Association of Racing Commissioners International (RCI), said Doug McSwain, legal counsel to the National Horsemen's Benevolent and Protective Association (HBPA).

"Do I think this case is a game-changer? I think it very well could be," McSwain said. "I think it could tilt the balance in the negotiations at the model rules level in favor of making a more reasonable rule."

Alan Foreman, chairman and chief executive officer of the Thoroughbred Horsemen's Association (THA) and general counsel to the New York THA, said he believes the New York ruling would have little impact on regulations enacted in other states such as California, Kentucky, and New Jersey because "the fatal flaws that were in the New York rule don't exist in the other jurisdictions I have seen. (New York's regulation) was fatally flawed from inception, primarily because the board extended its jurisdiction far beyond the jurisdiction it has by law."

The regulations challenged by the harness horsemen were also drafted to apply to Thoroughbreds racing in New York. Rather than fight the regulations in court, the New York THA worked with the NYSRWB to amend some of the provisions they found most onerous, Foreman said.

"We took the position that rather than spend money on litigation, we would engage the board in trying to correct and get a proper out-of-competition testing rule because the Thoroughbred horsemen were in support of an out-of-competition testing rule," Foreman said.

The New York THA's approach resulted in regulations for Thoroughbreds that "removed most of the impediments from the original rule that were so objectionable," though it has yet to be adopted by the NYSRWB, Foreman said.

"They have lost two years," Foreman said of the New York regulators' efforts to get out-of-competition testing implemented. "They have not adopted the draft rule we have worked out with them, so you are even getting to the nub of the problem, which is trying to root out those who may be trying to corrupt our races with blood-doping agents.

"What mystifies me is that rather than fix this problem, the board has fought this litigation with the harness industry. Why they insisted on litigating, why they just couldn't back off and say, 'Let's get it fixed,' which is what we tried to do and we think we did, is beyond me."

McSwain and Foreman agree most horsemen support out-of-competition testing because the types of substances for which the regulations are aimed should not be permitted. But they also agree that in adopting regulations, there needs to be uniformity and the rules need to be fair.

"Horsemen do not want to allow inappropriate blood-doping or other kinds of medications that cannot be detected on race day," McSwain said. "It needs to be done uniformly and it can be done uniformly if you don't have chest-beating regulators saying, 'I don't care what the model rule says, we're going to get tougher than that.' "

McSwain said the National HBPA has been working with RCI as it considers amending its current out-of-competition testing model rule, and that Powers' ruling could help provide guidance on how this plays out in the future.

"Horsemen are not against the concept of out-of-competition testing," McSwain said. "(The regulations) have to be narrowly drawn to make it not arbitrary and to make it constitutional."<

About the Author

Ron Mitchell/The Horse

Ron Mitchell is Online Managing Editor for The Blood-Horse magazine. A Lexington native, Mitchell joined The Blood-Horse after serving in editorial capacities with The Thoroughbred Record and Thoroughbred Times, specializing in business and auction aspects of the industry, and was editor-in-chief of the award-winning Horsemen’s Journal. As online managing editor, Mitchell works closely with The Blood-Horse news editor and other departments to make sure the website content is the most thorough and accurate source for all Thoroughbred news, results, videos, and data.

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