Out-of-competition testing in California: where the trainers’ representatives stand

Hair testing is particularly problematic in the U.S., says California Thoroughbred Trainers executive direction Alan Balch. Photo: Psychemedics Corporation

For the past few years, the California Horse Racing Board (CHRB) has been working towards an expansion of its out-of-competition (OOC) testing program, putting into place an enforcement mechanism to catch and prosecute violators.

Like most new medication rules in California, adoption of this new plan has proven a slow journey. And, at last month’s CHRB meeting, the wheels came off the bus entirely.

The meeting descended into a war of words between CHRB equine medical director Rick Arthur and representatives from both the California Thoroughbred Trainers (CTT) and the Thoroughbred Owners of California (TOC). Arthur subsequently released a statement excoriating the CTT and TOC, questioning whether they want a “real anti-doping program or not”.

In his TRC Vew from the Rail column of July 4, former New York Racing Association president Charles Hayward was then critical of the CTT and TOC over the issue.

In response to this article, CTT executive director Alan Balch asked for an opportunity to respond to Hayward’s comments. And so, with the CHRB Medication, Safety and Welfare Committee scheduled to discuss the proposed OOC testing rules again on Friday, TRC sat down this week with Balch to hear his positions on the issues at hand.

This Q&A interview has been edited for brevity.


Q: The CTT and the TOC’s push back against these new rules has been described as obstructionism and an attempt to shield cheaters. What is your position on OOC testing? Are you against its expansion in California?

A: Any suggestion that the TOC or the CTT condone cheating is patently preposterous. Both organizations, in writing and verbally, have made very clear that we are in favor of out-of-competition testing. We always have. We favor its expansion and refinement, and it’s very clear that we do. So, the idea that, because we don’t believe the proposed rule — which is not only not perfect, it’s imperfect in some very serious aspects — because we don’t believe their rule is at the moment enforceable in California, it’s just crazy that they would make this allegation. No rule is probably perfect, anyway, but this proposal is exceedingly imperfect.

You’ve pinpointed a number of things you consider wrong with the proposed rules, including who is ultimately responsible for the horse when it’s outside a licensed facility. Can you summarize your position on this?

It’s the responsibility factor. The Achilles heel of out-of-competition testing has been a problem right from the start, one that we have raised at [Racing Medication and Testing Consortium] RMTC meetings: horses have owners, horses have caretakers, horses have people who administer therapeutic medication to them and so forth. So, within the enclosure, it’s accepted that the trainer is the absolute insurer.

Now, once the horse leaves the enclosure to an unsecured environment, that gets to be a problem, for obvious reasons. Who is responsible for a horse in a non-secured environment?

The language they’ve come up with to hold either the owner or the trainer responsible outside of the enclosure is something that needs a lot more work. I’m not saying it’s insoluble, but the way to solve that problem is to work together with the regulator to come up with a practical method of deciding who’s responsible and how they’re responsible, so that, if people are cheating, the rule can be enforced and cheaters can be punished.

But, as Dr. Arthur points out in his Blood-Horse op-ed, the CTT and the TOC are members of the RMTC, and both organizations voted for the RMTC’s model OOC testing rule on which California’s new rules are built. Isn’t it a bit rich to be opposing these rules now?

Although we expressed all these same reservations at the RMTC meeting, we still voted for it because we were told that that we would work these things out, and because we favor most of it. When we have an issue with two paragraphs of a rule, but if we agree with the overall concept, of course we’re going to agree with it. We have some ideas as to possible solutions, but that’s why we favor this working group approach, to put these ideas on the table to see what’s wrong with our idea, see what works.

Here’s an example: one of the problems with the rules if you read them in detail is they try to identify the horses that are out-of-competition outside of the enclosure [of a licensed facility]. How is that going to work? Horses are constantly in movement.

In California, we have the track, we have two approved auxiliary training facilities, and, of course, there’s all kinds of places horses can be shipped to. But, there is not a good control of horses arriving and leaving the racetracks — but there should be. In fact, the existing rules require there to be. But it requires precision at the entrance gate, arriving and leaving.

So, why haven’t you delivered already a blueprint outlining what you would like to see in place, regarding the precision tracking of horses?

That’s why we’ve asked for working group meetings to brainstorm this problem. Are the racetracks really on top of the horses on the ground? They’re supposed to be, but they, generally speaking, aren’t. And any kind of flaw in the system can be exploited by cheaters.

We don’t want the cheaters to be able to exploit the loopholes in the rules to get away with cheating — in the worst possible case, the horse being sent some place for a cheating procedure. What we need is a system that evaluates all of those possibilities.

Can you summarize your objection to the use of hair testing as a potential methodology?

The rules mention other “biological samples”, and in a legal sense, if what I’m reading is true — and this is more a legal issue — according to the racing statute, only blood and urine testing are authorized. Now, the lawyers are going to have to look into that. But, if you look at the voluminous work that’s been done on hair testing on humans, which are mammals, there are serious, serious problems with hair testing.

But hair testing is used in other jurisdictions, including by the British Horseracing Authority (BHA), as a forensically defensible testing method.

We’re not saying that it shouldn’t be used, but in the United States the system of justice is that, if you’re going to use a certain testing methodology, you had better have it proven scientifically. Look at how long it took for DNA testing to be proven in a scientific way.

In humans, [hair testing] is problematic in the United States, and in horses, it’s really problematic. If there are things at the BHA that can be applied, great. Let’s see what they are and have an open discussion see what the limits of hair testing are and the advantages of hair testing.

You argue that OOC testing of “other biological samples” violates state statute, but clearly the regulators believe that indeed it doesn’t.

Here’s an understandable problem that Dr. Arthur and others have with the rule-making process in California: the Administrative Procedure Act and the Office of Administrative Law state that there cannot be inconsistencies between the law and the rules, or within the rules themselves. Many people in California oppose the opening of a statutory problem, but the law itself may need to be corrected or updated so that the rules can be consistent with it.

In this case, we want these laws and the rules to stand up in court. Ninety-nine percent of the horsemen don’t have the resources to fight something in court if they are, or they think they are, unjustly accused. But you know who would have the money? A cheater. Somebody who is really cheating in a sophisticated way, and intent on cheating, can exploit loopholes in the system.

We don’t want that to happen, and we don’t want the innocent to be treated unjustly.

You’ve also questioned the proposed prohibited drug substance list, including legally compounded therapeutic substances, in OOC testing. Can you summarize your position on this?

That needs to come more from the veterinarians, but the idea that all compounding of medications is bad and opens the door to cheating, that’s simply not the case. That’s why we want a working group on this, so practicing veterinarians can come to the table and talk about what their problems are, say, ‘we want to be able to administer this particular compounded medication, which is legal and necessary for the medication of horses, and we don’t want to see it prohibited by this particular rule.’

The idea that all vets are being painted with a broad brush as facilitating cheating is absolutely wrong. We stand for the health and welfare of the horses, and so do 99 percent of veterinarians.

Can you pinpoint just one or two of these listed prohibited substances and explain why you think they shouldn’t be there, or what exceptions should be in place for them?

As far as the specifics, I can’t talk about that. I’m not a veterinarian. In principle, we need to have rules that permit the use of legitimate therapeutic medication. Some place, there’s a line between the proper use of therapeutics and the abuse of therapeutics. So much of the racing board’s time, effort and budget is spent policing the use of therapeutic medications, and yet the number of violations of therapeutic medications rules is infinitesimally small in the big picture.

In regards working group meetings that would be done behind closed doors, given the level of public distrust in the sport, wouldn’t it be better to make the process transparent?

The posturing on both sides, whether it’s our side or the regulators’ side, is what creates distrust in this sport. It creates an adversarial situation right from the start. This idea that we’re opponents to the regulators, which is in all these headlines, that’s been created by public transparent meetings, where allegations get made about veterinarians and trainers by regulators, and that’s just wrong.

The RMTC is not a transparent process, for example. The public is not at the RMTC meeting — the public wouldn’t understand most of what’s discussed at an RMTC meeting anyway.

So, there’s a political aspect to that, too. This is a long-winded answer to say that there’s transparency, and then there’s transparency. The regulators should tell the various horsemen’s groups, ‘we need to expand OOC testing, and here’s why.’ If we could have got together on the things we’re talking about informally, we probably would already have an OOC testing rule.

This seems as though you’re advocating for as little public input as possible.

By law, public meetings have to be held, and there’s a very good purpose for the public meetings. You never know when a stakeholder or a veterinarian or a regulator is going to step forward with an idea or problem someone else hasn’t thought about.

But you have a system now when everything’s being done in a public meeting with a court recorder, and because of the posturing, you have people who are afraid to participate. Or they take pot-shots at the rule after it’s been passed, attack it in court. That doesn’t help anybody — especially if the cheater has been caught and the rule hasn’t been designed to be truly enforceable. Then, somebody who is well funded can take the whole thing down.

Okay, so what workable, tangible differences to what’s in the proposed rules could you consider being implemented?

We need to conquer the problem about how to determine when a horse is leaving the grounds and where its destination is. I can easily see some kind of methodology in terms of responsibility, some methodology of saying, ‘from this point forward, this horse is under the responsibility of x person.’

To me, that would solve a lot of problems. But I can hear the screams from the roof tops that it’s not practical. Well, isn’t that the fundamental problem? Who is responsible for the horse?

When you’re moving a horse from a secured environment an unsecured environment, that is a super difficult problem to solve, because the people that are cheating, they’re way ahead of us — we don’t think like them. What are we going to do to conquer that? I don’t have that answer.

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