Ask a horse owner or trainer in the United States about racing’s anti-doping program and you’re likely to receive a quizzical look or a blank stare. That’s because ‘anti-doping’ is not a term most of us associate with horse racing.
If you get any response at all, it’s likely to be, “We have a drug-testing program.” And indeed, racing does have such a program.
Protecting the integrity of the sport, however, involves much more than just drug testing.
Under a Federal bill that introduced in May (which built upon a similar bill from 2015) Congress would empower the United States Anti-Doping Agency (USADA) to take the reins of a new, private, not-for-profit anti-doping authority to create and manage a comprehensive nationwide anti-doping program for horse racing. The proposed legislation, formally known as H.R. 2651, is named the Horse Racing Integrity Act of 2017 (HRIA) and it was introduced in the House of Representatives by Rep. Andy Barr of Kentucky and Rep. Paul Tonko of New York.
This bill is materially similar to the version introduced by the same sponsors in 2015, but it has been enhanced in a number of respects. The most significant change is that the scope of the national anti-doping program has been expanded to include Standardbred and Quarter Horse racing. Another important change is a prohibition on administration of any medications on race day, including furosemide (Lasix).
I would strongly recommend that any person with a stake or an interest in the sport of horse racing become familiar with this legislation. The complete 46-page bill can be found here.
I am providing a brief overview of the bill’s most important components, along with a description of the status quo. I have included my thoughts on how the new legislation might be applied. In the spirit of full disclosure, I have been, and remain, a staunch advocate for this legislation.
Authority and scope
The legislation would require the creation of an entity named the Horseracing Anti-Doping and Medication Control Authority (the ‘Authority’). That entity would be governed by an independent board of directors, a majority of whom come from USADA. It would be responsible for developing and enforcing a national uniform anti-doping and controlled medication program for horse racing.
The program would apply to all Thoroughbred, Standardbred, and Quarter Horse racing. The Authority’s jurisdiction would cover all horses and participants involved with racehorses of the three breeds. This would include owners, trainers, veterinarians, grooms, etc.
The Authority’s anti-doping and medication control program would supersede individual state racing commission’s rules and the Authority would be the sole enforcement authority for all matters covered by the program. This control is limited to the anti-doping and medication control program and does not extend to other matters traditionally governed by state commissions, such as race dates, licensing, and investigating and issuing penalties for all other types of rule violations.
The Authority would be subject to limited oversight by the Federal Trade Commission (FTC). The FTC will be responsible for approving the Authority’s rules (after public comment), selecting administrative law judges to hear appeals of the Authority’s sanctions and acting as the final appellate body in sanctions matters.
Structure
The Authority will be governed by a 13-member board of directors. The board will consist of the Chief Operating Officer of USADA, six directors from the USADA Board, and six individuals, appointed by USADA from nominees of a variety of equine industry constituencies. Each of the six ‘at large’ industry board seats is earmarked to people with demonstrated expertise in a variety of areas, such as veterinary treatment of race horses, training race horses, jockeys/drivers, etc.
To ensure independence, all directors will be subject to strict conflict-of-interest standards.
Horse racing expertise
The Horse Racing Integrity Act requires the Authority to establish one or more standing advisory or technical committees in establishing the anti-doping program.
The racing industry would be well served to have the Racing Medication and Testing Consortium (RMTC) appointed as the primary standing advisory committee. Established in 2002, the Consortium is an organization that represents 23 racing stakeholder groups. Most of the progress made by the racing industry regarding medication and testing over the past decade has been the result of the efforts of the RMTC.
In order to strengthen the industry’s most important advisory committee, the RMTC should expand to include two additional areas of expertise: human anti-doping and international horse racing.
Human anti-doping expertise should be present at all levels of the Authority’s structure, including the ground floor of rulemaking and policy development.
The added value of international perspective is consistent with one of the goals of the legislation. The legislation specifically states that “…rules, procedures and enforcement policies should be implemented consistent with internationally accepted best practices ...”
Uniform anti-doping rules
The Horseracing Integrity Act requires the Authority to establish a body of rules for its anti-doping and medication control program, including lists of permitted and prohibited medications, lab accreditation and testing standards, adjudicatory procedures and sanctions.
Currently, most medication and testing rules begin as recommendations from the RMTC. From there, two committees of the Association of Racing Commissioners International (RCI) - the Drug Standards and Practices Committee and the Model Rules Committee – consider any recommendations. If approved, the RCI Board of Directors votes to adopt the recommendations as model rules. From that point, to achieve uniformity, each individual state commission (of which there are over 30) must promulgate the model rule.
The state-by-state approval process has frustrated industry stakeholders and fans for decades. Many model rules take years to promulgate – while some states never even try to pass certain rules.
The best way forward under the legislation would be for the Authority to receive recommendations directly from the RMTC and subsequently commence its rulemaking process. This streamlined process would still allow for further opportunity for public comment. Any rule approved would thus become effective simultaneously in all states.
In other words, true uniformity.
List of permitted and prohibited substances
The legislation requires the Authority to develop, maintain, and publish a list of permitted and prohibited substances and methods. The legislation sets the RCI’s Uniform Classification Guidelines and Foreign Substances and the Prohibited List of the World Anti-Doping Agency (WADA) as a starting point but also makes it clear that the Authority has full latitude to make its own rules (subject to FTC approval).
The Authority will have a head start in providing these required lists. The RCI classification guidelines are current, time-tested, and have served the industry well for over two decades. In December 2016, the RCI adopted a Prohibited Substance List designed after the WADA code.
Under the Authority, the industry will not be left waiting for several years as states attempt local adoption. The Authority would make these lists effective simultaneously in all states.
Laboratory accreditation and testing standards
The legislation requires the Authority to establish procedures, standards and protocols for accredited laboratories. The Authority may extend interim accreditation to those laboratories accredited by the RMTC. Currently, ten of the 14 laboratories conducting testing on race horses in the U.S. are accredited by the RMTC.
The current accreditation process focuses on testing procedures and protocols. In short, laboratories are accredited for what they are capable of doing instead of the work they actually perform for their clients, the commissions.
The deficiency of this accreditation process is one of authority. The RMTC lacks the authority, as does any currently constituted national body, to require laboratories to find certain drugs at a mandated concentration. That authority currently resides with each state racing commission. For that reason, there is a perception of a wide disparity in drug testing between states.
Under the HRIA, the Authority would establish such a national uniform standard. Compliance would be mandatory and uniformity would be achieved.
Testing and sampling
The HRIA permits each state racing commission to choose its own laboratory as long as the laboratory is, and remains, accredited.
In all likelihood, the laboratories currently testing horse racing samples would continue to do so. The primary difference, however, is that these laboratories would be required to perform up to the standards set by the Authority. Failure to meet the Authority’s standards would place a laboratory’s accreditation at risk.
The Authority would also establish standards for out-of-competition testing (OOCT) that would be applied uniformly in all states. The OOCT program would require the disclosure of the whereabouts of all horses in training at all times. This would greatly improve the current situation where only a handful of states have an effective deterrent for blood doping.
Investigations
The legislation gives the Authority the responsibility to investigate any violation of its anti-doping rules.
State commissions now have similar authority that is limited to its provincial borders. Most commissions have a Director of Security and/or investigators who conduct investigations into the conduct of licensees and other persons. State investigators have broader responsibility because their investigative authority spans rule violations of any type, whereas the Authority would be limited to its anti-doping rules.
USADA’s approach to regulation is highly principled and integrity based. Its independence assures an even-handed, show-no-favorites application of its authority to investigate and sanction. An ideal approach, at least for the most important investigations, would be for the Authority to partner with USADA to utilize its expertise and time-tested strategies and combine them with the specialized knowledge of local commissions’ boots-on-the-ground investigators.
Due process
Under the legislation, the Authority has the power to sanction individuals who violate its anti-doping rules. The HRIA requires the Authority to establish a schedule of sanctions for violations and rules for due process that include impartial hearings.
The disciplinary processes that state commissions and USADA currently follow have one procedure in common: the ability to accept an agreed upon sanction. Most trainers accept the RCI Uniform Model Rule for Penalties either as the result of a stewards’ hearing or in lieu of a stewards’ hearing. Consequently, a very small percentage of alleged violations are appealed.
Presently, the adjudication process for appeals varies from state to state. The most common model allows for state racing commissions to appoint an ALJ (Administrative Law Judge) to conduct an administrative hearing and issue a recommended decision. The commission may adopt, reject, or amend the ALJ’s recommended decision. This process is followed in most appeals of an adverse ruling from the Board of Stewards after an initial hearing is provided at the track. In some instances, the initial hearing is by-passed and the first and only administrative hearing is before an ALJ.
A common complaint of the current adjudication process is the perception of a lack of independence. This is the result of ALJs being appointees of the relevant state commission or otherwise affiliated with state government. Under the HIRA, those sanctioned by the Authority will have the right to a speedy appeal covering all the merits of their individual cases, which will be heard by independent administrative law judges not associated with the Authority in any way.
Cost
The cost of the anti-doping program has yet to be determined. Preliminary estimates provided to the Coalition for Horse Racing Integrity indicate the additional cost of the new anti-doping program would likely not exceed an average of $60 per start. This estimate assumes that all current funding for anti-doping remains in place. I understand that much of this increased cost comes from the expansion of out-of-competition testing.
Although the cost is expressed in dollars per start, the allocation of cost among stakeholders could vary from state to state. The HRIA provides flexibility in determining the source of funding. The legislation reads as follows:
Each State racing commission shall determine, subject to the applicable laws and regulations of the State, the method by which the requisite amount shall be allocated, assessed, and collected, provided that in no event shall the funds be obtained by means of an increase in the takeout.
Final thoughts
The Horse Racing Integrity Act of 2017 would provide the uniformity in regulation that is the accepted standard in nearly all professional sports. This landmark legislation, however, brings much more than uniform application of standardized rules and protocols. It promotes the principles of integrity, excellence and independence, some of which have been long absent in many racing jurisdictions.
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Joe Gorajec has spent his entire adult life in the racing industry and served as the executive director of the Indiana Horse Racing Commission for 25 years (1990-2015). He is also a former chairman of the North American regulators’ trade association, the Association of Racing Commissioners International (2008). Now semi-retired, he spends his time consulting, writing and gardening at his central Indiana home.