The racetrack can be a dangerous place, at least for the trainers who tend to the horses and the jockeys who ride them. On the other hand, the patrons get to view the races in relative comfort and safety. Unless they get hungry and happen to be at Calder.

On November 9 inspectors from Florida’s Department of Business and Professional Regulation closed Calder Casino and Race Course for violations of food service regulations. The citations included:

• raw/undercooked animal foods were offered and there was no consumer advisory posted;
• a stop-sale was issued on potentially hazardous pork due to temperature abuse;
• a black/green mold-like substance was inside the ice machine;
• small flying insects were in the kitchen, food prep or storage areas;
• more than 10 live roaches were in the premise;
• no proof of required, state-approved training was provided for all employees.

I don’t know about you, but reading that made me queasy. And it doesn’t make me feel better to know that after10 live cockroaches the inspector gets to just use the inexact “more than” count.

Luckily for patrons Calder cleaned things up and got to open up the next day. I tried contacting Matthew Harper, spokesperson for Churchill Downs Inc. at Calder, multiple times for comment but he did not get back to me. He did, however, comment for the Sun-Sentinel, saying,

“The safety of our guests and team members is our highest priority.  We immediately took action based on the finding  and rectified the issues in the issues in less than 24 hours. We have taken steps in identifying and enacting procedures to ensure that this does not happen again.”

It seems a little disingenuous to suggest safety is the highest priority with the sort of violations the inspector found, but what could you expect CDI to say other than we fixed the problem and took steps to make sure it doesn’t happen again. And then lay low.

I hope they meant it, but you don’t change the management and culture of a place in a day. The highest likelihood was that this wasn’t a problem where the inspector just happened to catch them on a bad day, but that it had been festering for a while. Disregard for something as important as the health and safety of your patrons says something about the operation in general. The problem shouldn’t have happened in the first place. A good business does not treat its patrons with anything less than total care. Just because we are horseplayers and gamblers doesn’t mean we are willing to put up with poor practices and sanitation when it comes to ordering a hot dog and a beer.

Hopefully the inspectors will stay on top of the situation. Meanwhile, you might want to stick with bottled drinks and eat your lunch before you leave home.

There is a great site called legalsportsreport.com that extensively covers the current issues surrounding Daily Fantasy Sports. They recently did a poll asking adults about whether DFS should be legal and regulated. The more significant results were:

• 54 percent of respondents say DFS should be legal; 38% said it should be illegal.
• 50% said they believe DFS is a form of gambling; 30% said it is a game of skill; the rest responded “don’t know.”
• 38% said they agreed with actions taken by the New York attorney general against DraftKings and FanDuel; 31% disagreed.
• 40% said said betting on sports on the internet should be illegal, 47% said it should be legal.
• 51% said state governments should regulate DFS sites; 35% said they should not.

I always take polls with a grain of salt. For one thing, the thinking behind some opinions isn’t always clear.  Why exactly should anything be legal or illegal? For another, it is common for people to have rock solid opinions on things they know absolutely nothing about. Most policy things are like icebergs – the majority of the bulk is underneath where you can’t see.

It’s not a surprise that I would favor internet betting. Generally, I think adults should have the right to bet on pretty much whatever they want, but I have no problem with some protective rules, and I especially have no issue with wagering sites paying FAIR taxes.

The current hoopla about DFS is probably not about the right to bet or the morality of gaming as much as it is about the state protecting the players and getting its share. The anti-gambling folks can pontificate all they want about the miseries associated with gambling addiction. I’m of the opinion that no matter what the vice, 10% of the population will find a way to become addicted or abuse it. While it is a nice thought, you can’t always save people from themselves. As the famous Pogo quote goes, we have met the enemy and it is us.

The case in New York seems to revolve around the definition of “control or influence” in the definition of gambling in the NY Penal Code. Here is the actual statutory reference.

Gambling.” A person engages in gambling when he stakes or risks something of value upon the outcome of a contest of chance or a future contingent event not under his control or influence, upon an agreement or understanding that he will receive something of value in the event of a certain outcome.

This is a tricky situation for the DFS folks. On the one hand, you could argue (just like horseracing) that since the players make decisions about player selection based on statistical inputs and research, it is under their control or influence. They could argue pure gambling is something like most slot machines or most table games where the odds are fixed and you can do nothing to push the odds in your favor. Even in something like video poker, playing the optimal strategy is a long run loser.

On the other hand, they have no control or influence over the performance of the athlete they are betting on. Much like horseracing, there is still an essence of gambling when you make the bet. Attorney General Schneiderman’s initial argument underscores this:

Yet FanDuel and DraftKings insist that DFS is not gambling because it involves skill. But this argument fails for two clear reasons. First, this view overlooks the explicit prohibition against wagering on future contingent events, a statutory test that requires no judgment of the relative importance of skill and chance—they are irrelevant to the question. Second, the key factor establishing a game of skill is not the presence of skill, but the absence of a material element of chance. Here, chance plays just as much of a role (if not more) than it does in games like poker and blackjack. A few good players in a poker tournament may rise to the top based on their skill; but the game is still gambling. So is DFS.

Of course the problem with Schneiderman’s argument for DFS being gambling is that it appears to make every single thing where there is a bet involved gambling. If I bet you that I can run across the busy freeway and not get hit, regardless of my skill in the freeway dash, I can’t predict the behavior of all the drivers I’ll be dodging. or if the road suddlenly crumbles beneath my feet. There is, as Schneiderman says, no absence of a material element of chance. In other words, you make a bet, no mater how much time you spend researching and coming to a decision, you are gambling.

The more relevant question for Schneiderman is, what, if anything, is a game of skill with an absence of a material element of chance and betting as part of the game?

Draft Kings and Fan Duel are not going anywhere in the long term despite their travails in the short term. The have massive corporate backing (you don’t hire David Boies cheap) and frankly if the NFL or MLB sat down for weeks brainstorming they couldn’t come up with a better marketing idea than DFS.

I’m sure some pretty smart people are in charge at the DFS services, but in the end the best strategy they have is not to fight with NY about skill versus gambling, but to simply sit down with a reasonably powerful legislator and negotiate a regulatory structure that works for both sides.

I don’t know what that is, but I know what it isn’t. Horseracing’s set up,

As is my tradition, Thanksgiving is for family, not betting horses, so I won’t be posting selections this week. However, I want to give thanks for all the friends and followers I’ve made in the last year. It’s a lot of work doing the selections and the blog, but knowing it is appreciated is payment enough. Meanwhile, horseracing news never stops, so here is a new blog on the trevails of Steve Asmussen and his fight with PETA. Enjoy.

__________________________________________________________________________

We waited for the decision on Steve Asmussen and his alleged abuse of horses (as presented by PETA) for what seemed like years. Actually it was years. I won’t keep you in suspense any longer. The New York State Gaming Commission called the most serious PETA allegatons “unfounded.” I expect that will hardly discourage PETA. Horseracing for them is animal abuse for a number of reasons, but mostly because it is horseracing.

Any relief Asmussen may have felt was short lived, because while he didn’t face penalties for the worst of the PETA allegations, he did get fined $10,000  for the administration of thyroxine, a hormone made by the thyroid gland and one of the most important of the thyroid hormones, less than 48 hours before a race. In humans it affects almost every process of the body, including body temperature, growth and heart rate. It is estimated that 20 million Americans (7% of the population) suffer from some form of thyroid disease. (Consider this a public service announcement. Get your thyroid levels checked.)

Although Asmussen beat the worst of the raps, the NYSGC found that three PETA allegations against Asmussen or his team were valid: that veterinarian Joseph Migliacci allowed partially completed furosemide eligibility forms to be completed by third-parties in his presence; that thyroxine was used without evidence of its medical necessity; and that Asmussen administered synthetic thyroxine.

Interestingly, those three things are not covered by Commission regulations, and he was not fined for any of them. One of Asmussen’s lawyers, Clark Brewster, criticized the NYSGC fine Asmussen received for thyroxine because they never held a formal hearing or presented allegations to which he could respond.

Brewster said, “Wouldn’t it be nice to have some due process? It is not a drug. It is a hormone. It’s not listed in any way as a drug or hormone that you cannot use.” He added that it was the first time to his knowledge that anyone had been fined for using thyroxine.

In researching hypothroidism in horses, the consensus seems to be that, unlike the human population, it is a rare condition in horses, and there are a lot of things that can impact throid levels, including

• The age of a horse (young horses have higher levels than adult horses)
• Season (cold temperatures stimulate the thyroid gland while warm temperatures inhibit it)
• Time of day (levels generally spike in the late afternoon and are lowest between midnight and 4 a.m.)
• Use of anti-inflammatories at the time of testing (corticosteroids suppress thyroid function, and NSAIDS will also skew test results)
• Stress, systemic inflammation (e.g., infection)
• Activity level (horses in training have more circulating thrroid level)
• Animals eating  while being sampled tend to have higher thyroid levels
• Certain plants can inhibit thyroid function by altering iodine metabolism.
• Certain medications (e.g., bute and acepromazine) can lower thyroid hormone levels
• Even dietary imbalances in daily iodine intake can cause imbalances in daily thyroid levels.

The point is that it is not inconceivable that Asmussen’s vet could have measured levels that indicated hypothyroidism, even if it was related to external factors, and recommended thyroxine therapy. In fact, Asmussen’s attorney Brewster said Asmussen used the hormone on limited horses on the advice of veterinarians to treat low thyroid levels. “It wasn’t just haphazard use of a hormone,” he said. He also noted that the “proof” of Asmussen’s indiscriminate use of thyroxine came from PETA, and was not gathered by NYSGC investigators. In the absence of blood tests, no animal doctor could reach a conclusion on a horse’s hormone levels, and according to Brewster, Asmussen willingly provided all the records that would have justified thyroxine treatment.

All things considered, fining Asmussen may have been as much a political move as one that was necessary to protect racing. Even if anecdotally the chances of Asmussen’s horses having hypothyroidism seem pretty minimal, by stepping outside due process NYSGC has raised legitimate concerns that they are willing to ignore their own rules in an effort to appease outside groups or to put themselves in some sort of limelight. Asmussen’s lawyer pointed out that thyroxine isn’t listed anywhere as a banned substance and this is true for a whole slew of vitamins, hormones, and supplements. NYSGC applied tortured reasoning to fine Asmussen for a substance that is not illegal to use, and it is a short distance to making anything they please a finable offense.

There is another interpretation of the NYSGC action to fine Asmussen. Because NYSGC wasn’t going to punish Asmussen for the most serious PETA violations, they wanted to either prove they took PETA seriously, throw them a bone, or perhaps get them off their case. NYSGC made it a point to conclude three of the PETA allegations had merit, even though none of the three was a violation of NYSGC regulations. NYSGC executive director Robert Williams, in a written statement, praised PETA for its role “in bringing about changes necessary to make Thoroughbred racing safer and fairer for all.” Considering they slathered Asmussen with the nasty allegations that NYSGC determined had no merit, and their major contribution was pointing out Asmussen’s vet oversaw filling out forms instead of doing it himself, there wasn’t proof positive from PETA that Asmussen’s horses had hypothyroidism, and Asmussen treated his horses himself with a legal, therapeutic medication, it might be a little over the top to give PETA too much credit, unless of course there was some pandering going on.

It also could have been a message to those pushing for federal legislation that New York can take care of business and doesn’t need U.S. ADA intervention.

Lest you wonder if keeping PETA at bay was on NYSGC’s mind, a story in the Blood Horse noted NYSGC didn’t stop at dispensing with Asmussen.  It said, They (NYSGC) also proposed changes in drug rules. NYSGC said it wants to make it impossible for veterinarians and trainers to “experiment” with drugs or use them as a training tool. One rule read, “No drug may be administered except to treat a diagnosed medical disorder or as a generally accepted preventive medical practice.”

It went on, “No drug or other substance that could abnormally affect a horse should be administered unless in the course of reasonable, good-faith care of the horse,” states the proposed rule change. Officials said the wording is meant to broadly bolster regulators’ enforcement abilities against the improper use of drugs. The NYSGC also is advancing draft rules to require that trainers keep logs of any drugs a stable gives to a horse, and new rules for how veterinarians can renew equine drug prescriptions.

To be fair, PETA influence or not, it’s a reasonable protection to draw the line between using therapeutic medications to enhance performance and using them to legitimately treat a condition. The wording may need some scrutiny (what exactly does “abnormally affect” mean), but the idea is at least legitimate for discussion.

Back to Asmussen, as I’ve said in the past, applying a broad, generic definition means EVERYTHING is performance enhancing, including water (I certainly hope pointing that out doesn’t get it on the NYSGC list of finable substances). If Asmussen gives his horses feed, it contains all sorts of “performance enhancing” vitamins and minerals. Is it just a matter of time before enriched feed becomes illegal, especially if NYSGC rules wind up with highly interpretable language?

If NYSGC gets away with fining Asmussen without establishing his guilt for violating a Commission rule at a hearing where he has a chance to defend himself, we are officially on the slippery slope. Not a single one of the people on that Commission would approve of a legal system that would convict them of a crime, and punish them, without having a hearing in front of an impartial judge and an impartial jury with an opportunity to present their side of the case. Yet, they don’t think twice about acting with the authority of an imperial monarch in this case.

Whether you think Asmussen should be punished for administering thyroxine is beside the point. You should be incensed at the way NYSGC handled the situation. Regardless of your passion for punishing trainers who look to gain an edge by administering performance enhancing substances, it is a black eye for horseracing to punish a trainer without a proper hearing, sufficient factual evidence, and an opportunity to present a defense. Don’t miss the point – this isn’t about thyroxine. This isn’t about needing more rules to constrain drug use. It’s about how the future bodes for trainers that are found in violation of rules that never existed. It is about absolute power corrupting absolutely.

I would hope the horsemen do not let this pass unchallenged. NYSGC owes everyone a legal, defensible justification for Asmussen’s fine.

Qui tacet consentit

A week ago I posted a piece on trainer Roy Sedlacek pleading guilty to the use of a supplement containing the banned Class A drug, AH-7921. In that post I criticized the Racing Medication and Testing Consortium (RMTC) for not being more proactive in the testing of supplements. RMTC sent me a response to the column and that response, unedited, is shown below.

Let me first say that we are on the same page when it comes to illegal, performance enhancing drugs in racing. Ensuring trainers are not administering illegal substances to horses is critical to protect the integrity of racing. While I have (deservedly) taken some of the racing commissions to task for how they dealt with certain medication/drug cases (but have not criticized the test results or testing labs), I have consistently said that trainers who knowingly administer substances with the intent to gain a performance edge should be dealt with harshly. In my recent blog on H.R. 3084 (http://halveyonhorseracing.com/?p=2580) I also supported HBPA, ARCI, WHOA and other groups working in concert to deal with drug and medication issues. A theme in my blogs is that there needs to be a combined proactive effort to educate horsemen about drugs, medications and supplements. 

I’m certainly not looking to get into a non-productive back and forth. RMTC had a legitimate point that my blog may have made it sound as if they were doing nothing on supplement testing. Clearly they are, and I have revised the Sedlacek blog post to make that clear. You can make up your own mind whether the efforts they discuss below to test supplements are sufficient.

I certainly had no issue with the testing New York did to find AH-7921 in Sedlacek’s horses, and it’s comforting to hear RMTC is trying to find tests for previously undetectable substances, although nothing in my blog made any criticism of NY or RMTC for their post-race testing work. It was disappointing to hear that RMTC does not issue  some sort of public notification every time they detect a new illegal substance, especially because the number one issue for many horseplayers is the perception that there is rampant use of undetectable, illegal substances in horseracing. It may be just my opinion, but knowing RMTC is aggressively responding to the perception is critical to the long term health of the game. How will we know unless they make an effort to get the results of their work out there? If there is one thing that has been consistent in my blogs, it is the need for transparency in all aspects of enforcement.

I would concede that my statement in the blog, “…if they were really serious about cleaning up the sport they would be ordering Lightning Injection and the rest of these unregulated supplements and testing them,” could be interpreted in the extreme as telling them they needed to purchase every compound on the internet for testing. Even if that is the ideal, it may or may not be asking for too much. I’ve revised the Roy Sedlacek blog to make it clear when I am talking about ARCI and RMTC, and have clarified thoughts about testing supplements based on the RMTC comments.

I’m not sure how many supplements there are out there – horseprerace.com listed 373 products, but many of them appeared to be repeats, double listings and size differences, so maybe 150-200 unique products on that site. While I’m not sure the number of products out there is too daunting to put on a regular testing schedule, the RMTC comments did reinforce the point I made about supplements – they are unregulated, often do not contain the listed amounts of ingredients, and can be contaminated. You can test two bottles of the same product and come up with different results. Still, even that is worth knowing for trainers and the public. If you want to minimize the impact of these supplement manufacturers, the best way to do it is to hoist them on their own petards by showing they are inconsistent and possibly dangerous.

We all know there are snake oil peddlers active at racetracks, armed with their own “studies” about the efficacy or safety of their products. It is important for the RMTC to reinforce that they are fighting fire with fire by informing trainers and the public of the testing they are doing. Even the RMTC assertion that of the 100 unknown substances they have tested in the past few years, “[only] three have had anything more than sterile water, preservatives, sugars, and amino acids or various combinations of specially compounded common medications,” should validate a more aggressive testing program because it is just as useful for trainers to know they are snake oil as they contained illegal substances. Trainers are using these supplements because somewhere they got the idea they work, and they’ll keep using them until it is proven they don’t. 

Current post race testing yields less than 0.5% positives, and 0.01% positives for Class 1 and 2 substances. The testing of 100 supplements referenced in the RMTC letter apparently yielded 3% illegal substances. It would be absurd to argue that we should substantially limit post race testing, even based on those results, and I would say three out of 100 supplements is also worth the effort, regardless of the difficulties.

I’ll end where I started. The work of the RMTC is a critical part of cleaning up the game, and they are to be lauded for what they do. But I still believe they could do much more, and I still believe we spend far too much trying to catch trainers after the fact, and not nearly enough on proactive, pre-emptive research. At the end of the day, a violation avoided is worth far more than a violation punished. Get the information out there to the public and the trainers about the effectiveness and results of RMTC and it will benefit the game.

As for making a donation, all of us horseplayers are already “donating” 15 to 30 cents of every dollar we bet. I suggest you start by convincing the people that divvy up the booty to give you a larger cut, and if you want my support on that, you’ve got it.

The RMTC response is below.

 

RMTC Response to Roy Sedlacek Post

I recently read Rich Halvey’s commentary in halveyonhorseracing.com regarding the recent positives called in New York for AH-7921.  In response, I would like to take Mr. Halvey’s statements regarding the RMTC to task and encourage him to reach out to us at the RMTC before he posts another misinformed piece.

First and foremost, while it is commendable that the New York Drug Testing Laboratory found AH-7921 in post-race samples, it is certainly not novel or unexpected. Horseracing testing laboratories have been aware of this substance and have been testing for it for several years. Developing methods for finding new substances is a requirement for RMTC Accreditation. As a result, the RMTC Accredited Laboratories are continually working to find tests for previously undetectable substances. Even though  a press release is not issued every time a new drug is detected or a new test is developed, that does not mean we are not finding new substances and developing new tests daily.   

 Second, RMTC does order a myriad of substances that are available via the internet – in addition to those provided to the RMTC by trainers, veterinarians or racing jurisdictions. These are tested for the presence of prohibited substances.   Some of the findings are rather interesting so we are not surprised Mr. Sedlacek purchased what he thought was ITPP and ended up with an AH-7921 positive. In the past three years, the RMTC has greatly increased its focus on an area we call Tactical Research. As a part of that Tactical Research, the RMTC has tested:

•  Many substances purchased on the internet by RMTC or trainers on behalf of RMTC;
• Several substances anonymously mailed to the RMTC by trainers;
• Over 30 substances confiscated during barn and veterinarian truck searches in New Mexico – in which RMTC staff personally participated;
• Numerous substances confiscated in Florida;
• Two substances confiscated from a barn in Delaware and identified dichloroacetic acid and tadalafil; and
• Individual substances that were submitted by numerous jurisdictions.

Just in the last few months, the RMTC has submitted three substances from three separate jurisdictions to RMTC Accredited Laboratories for analysis. Moreover, the RMTC works with many states and racetracks that are willing to spend their own funds to have substances analyzed in horse racing laboratories. RMTC has developed a protocol that we follow and that we share with others to use in requesting these services.

Of the nearly one hundred unknown substances that RMTC or individual jurisdictions have tested in the past few years, only three have had anything more than sterile water, preservatives, sugars, and amino acids or various combinations of specially compounded common medications. Two of those were for the substances submitted by Delaware. The final one was from a trainer who anonymously submitted a colorless injectable liquid.

In his article, Mr. Halvey suggests that the RMTC purchase every compound on every website for testing. While a portion of our Tactical Research budget is used for that purpose – it is one of the least fruitful areas. This is because the substances on these websites are unregulated, fringe sources.  That means that there is no expectation of consistency in the products. Because of this, formulations and additives can change based upon what is cheap, available, or fashionable in the drug maker’s mind. Thus, even testing these products once will be insufficient. This is why we test these substances continuously.

Furthermore, the RMTC does much more with its Tactical Research budget than just testing substances. With Tactical Research funds, the RMTC has funded:

•  Research regarding cobalt for the development of an endogenous threshold;
• Research for gamma aminobutyric acid (GABA) for the development of an endogenous threshold;
• Development of a dermorphin standard so that all laboratories were able to detect and identify it; and
• Research on hair testing – with the goal of testing for illicit substances using a methodology that allows for long-term detection.

In sum, the RMTC views emerging threats seriously. In the past three years we have dedicated significant time and resources to researching these and other areas of horse safety and racing integrity and with support from across the horse racing industry, we will continue doing so in the future. As for funding these important endeavors, I encourage Mr. Halvey and everyone interested in racing integrity to visit www.rmtcnet.com to make a donation.  

 Hallie Roach Lewis

Communications & Development

Racing Medication & Testing Consortium

There has been a lot of discussion about the Barr-Tonko legislation (H.R. 3084) and whether it is necessary to improve racing. The primary proponent of the legislation is the Coalition for Horseracing Integrity. The Coalition represents a diverse group of horse racing and animal welfare organizations including The Jockey Club, Breeders’ Cup Ltd., the Water Hay Oats Alliance, the Humane Society of the United States, the Humane Society Veterinary Medical Association, the Kentucky Thoroughbred Association and the Kentucky Thoroughbred Owners & Breeders.

On the other side, the Association of Racing Commissioners International (ARCI) and the Horsemen’s Benevolent and Protective Association (HBPA) oppose the legislation.

Ostensibly, the Bill is supposed to improve the integrity and safety of Thoroughbred horseracing by requiring a uniform anti-doping program to be developed and enforced by an independent Thoroughbred Horseracing Anti-Doping Authority (THADA). While it is true there is not absolute uniformity across jurisdictions currently, all or part of the groups that favor the legislation must also believe horseracing in its current form is corrupt, inept, unsafe or all three, a conclusion that flies in the face of statistics published by ARCI. Why else would we need federal legislation unless the only thing standing between failure and prosperity is regulatory uniformity, and the only way to get it was HR 3084?

Less than one-half of one percent of all urine and blood tests come back with a positive for a substance overage, and of those only a very small percentage are not related to approved therapeutic medications. In other words, on the face of it, the urgency of Barr-Tonko is that the handful of Class 1 or 2 violations (out of the hundreds of thousands of races run every year) not related to therapeutic medication or environmental contamination are convincing proof the system needs serious repair.To believe these statistics are wrong, you have to believe either

• Like many of the people in the recently completed DRF survey, you are convinced that no matter what statistics say, trainers are spiking their horses with great regularity and getting away with it; or
• ARCI is corrupt and hiding the real numbers; or
• The jurisdictions are selective or inconsistent in their enforcement; or
• Testing labs are either incompetent, hiding results, or simply not testing for the right performance enhancing substances.

Although the legislation doesn’t say this overtly, it is hard not to conclude there may be one other purpose – to deal with the issue of raceday Lasix. It is the 800 pound gorilla in the room. It appears WHOA and the animal welfare folks are not simply hoping to add a layer of bureaucracy on top of that which already exists in the states, but to have one place where they can finally tell all the recalcitrant racing commissions that Lasix four hours before a race is no longer allowed.

Let’s look at the important elements of the bill.

The highlight of the legislation is the establishment of the THADA. THADA is supposed to be independent (whatever that means exactly) and is responsible for developing and administering an anti-doping program for horses, persons and races covered by the Act. I’ll detail just how that differs from the current organization for drug testing below.

The THADA is supposed to be composed of

• The head of the U.S. Anti-Doping Agency;
• Five U.S. ADA board members;
• Five individuals from different constituencies of the thoroughbred industry.

The U.S. ADA is required to solicit lists of two candidates each from a cross-section of owners, trainers, veterinarians, racing associations, State racing commissions and jockeys. That’s five representatives from six constituencies. It also suggests the U.S. ADA should make an effort to include the most broadly based organization(s) from each constituency.

Notice any group missing? That’s right, the one group that provides the funding for the sport and is most affected by horses that race with illegal levels of medications or drugs, the betting public.

Notice anything else? More than 50% of the THADA is made up of people who were appointed to the U.S. ADA. I looked at each of the members. You have ex-Olympic athletes, a couple of medical doctors, a lawyer, a swimming coach, someone with drug-free kids, and a college professor in sports management. In other words, not one single person who is familiar with horseracing or the use of medications in racing in any sort of depth. You have a majority of non-racing experts to counterbalance the minority of potential experts.

Since the THADA is interested in avoiding any appearance of conflict of interest, the Bill requires nominees to not have a financial interest in, or provide goods and services to covered horses. Officials, officers or anyone else that works in policymaking or governance for any throughbred industry representative are similarly disallowed. Finally, any employees or people having a business relationship with the individuals or organizations described above are also disallowed.

Huh? I must not be reading this right, because it seems to say all the groups that are supposed to be on the board – owners, trainers, vets, racing associations, State racing Commissions and jockeys – appear to be immediately disqualified because they are associated with racing.

This is the exact language:

(c) CONFLICTS OF INTEREST.—To avoid any conflict of interest, no nominee or board member shall be—

(1) an individual who has a financial interest in or provides goods or services to covered horses;

(2) an official, officer, or serve in any governance or policymaking capacity for any Thoroughbred industry representative; or

(3) an employee or have a business or commercial relationship with any of the individuals or organizations described in paragraphs (1) or (2).

You can tell me if I am not reading that correctly.

The Bill also provides for the development of Standing Committees comprised of experts. I mention this only because the function of such committees eventually becomes a cost center.

The duties of the THADA will include

(1) lists of permitted and prohibited substances and methods;

(2) a schedule of sanctions for violations;

(3) programs relating to anti-doping research and education;

(4) testing procedures, standards, and protocols for both in-competition and out-of-competition testing;

(5) procedures for investigating, charging, and adjudicating violations and for the enforcement of sanctions for violations; and

(6) laboratory standards for accreditation and testing requirements, procedures, and protocols.

This is pretty standard stuff – in fact, it pretty much is what racing commissions do now. However, bear in mind, that any group with a specific agenda would now only have to convince the THADA to make a rule instead of 38 jurisdictions.

Also, consider one other thing. U.S. law does not apply in Canada. What do we do if Woodbine doesn’t adopt the same standards as THADA?

The authority of THADA is limited by the Bill. While they can decide which substances are permitted and prohibited, what the penalties should be for violations, what testing procedures should be, and how violations should be investigated, charged, adjudicated and enforced, they can’t actually do the work themselves. For that they would be dependent on the States. Perhaps not the most efficient organizational structure.

So to this point we have a THADA board primarily comprised of people outside of horseracing, with no representative from the primary funding group, with the same duties and responsibilities that current racing commissions have for developing drug and medication standards and associated penalties.

While THADA makes the rules and decides HOW they should be investigated, prosecuted, adjudicated and penalized, they leave the actual work of doing those things to the state racing commissions. Once again, the implication is that the state racing commissions are not getting it right, and need to be told what to investigate, how to investigate, and how to punish.

As has been noted, the centerpiece of the Bill is the anti-doping program. The program is required to include

(1) a uniform set of anti-doping rules;

(2) a list of permitted and prohibited substances and methods;

(3) a process for sample collection and analysis and test distribution;

(4) programs for in-competition and out-of-competition testing (including no-advance-notice testing and mandatory reporting of each horse’s location for testing);

(5) investigations related to anti-doping rule violations;

(6) management of violation results;

(7) laboratory accreditation; and

(8) disciplinary hearings, which may include binding arbitration, sanctions, research and education.

Once again, this is pretty much what racing commissions are responsible for now, although if you look at number (4) it seems like they grabbed the language right out of the U.S. ADA handbook. Olympic athletes can be tested anytime they are in training. It will be interesting to see how it goes to test horses as they are coming back to the barn after a gallop just to see if they were juiced up for the exercise. I mean the whole point of horseracing testing is to ensure a horse is not RACING with an illegal level or illegal substance. This out-of-competition testing may make sense for human athletes, but I’m not so sure knowing a horse is at 29 nanograms of Banamine after a workout should be grounds for an enforcement action. All the statistics and all the current testing suggest that unlike, say, cycling, horses are not juicing with steroids and EPOs, and even if they were, they’d get caught on raceday. Unlike most sports, horseracing has zero-tolerance for the kind of performance enhancing substances they are interested in controlling in cycling or the Olympics. Plus, considering how much it is costing just to test horses from a race, how much more would it cost to institute random testing between races?

THADA includes the absolute insurers rule in concept. The problem with the absolute insurers rule in the modern environment is that there are counter measures available to determine instances when the trainer is not responsible for a horse’s bad test. Things like security cameras should be mandatory. Drug testing for backside workers should be required, especially in cases where the measured level indicates an environmental contamination. Pro-active testing of common supplements, including feed, should be required. Requirements for investigations on the part of the enforcing agency need to be incorporated into rules. Once again, there is a missed opportunity to fix the weak parts of current regulations.

The Bill allows THADA to enter into an agreement with the State racing commissions to implement any of the rules developed by the THADA. While the racing commissions cannot be trusted to make the rules, apparently they can be given a chance to enforce the rules. In essence, things look about like they do now, except THADA decides what the rules are. In that case, the existing labs that are doing the sample testing will wind up being the labs doing the testing under the new THADA regime. After all, the states will still be responsible for sample collection and transport to the lab. One more thing that looks like the status quo and obviates the need for overlying federal legislation.

The really bad news is that the Bill states, Nothing in this Act requires the United States Government to provide funding for or to guarantee the debts of the Authority. The funds necessary for the establishment and administration of the Thoroughbred horseracing anti-doping program shall be paid entirely by the Thoroughbred horseracing industry…

The initial funding of the THADA would be done using donations and loans that would be paid back by assessing each jurisdiction a monthly payment. That payment would then be used for the continuing funding of the THADA. I don’t have a calculation handy, but considering the state payments have to fund the operation of THADA and all it’s standing communities, the only thing that stands between us an a multi-million dollar authority is the frugality of the appointed board.

If for no other reason, every serious horseplayer should oppose the legislation because unless states give up a portion of the take going to their operations (not likely since in the end they don’t really have less to do) the take will have to rise to cover the cost of running THADA. The number one issue for serious horseplayers is getting the take reduced, and anything that means it will be raised is not a good thing for us.

If the real purpose of the Bill was only to harmonize medication and drug testing and enforcement, there are avenues that could be explored short of federal legislation. In fact, I’m not sure we could successfully argue efforts to create uniform rules and standards have utterly failed. More and more jurisdictions are adopting ARCI’s uniform medication rules. While it may have taken time, ARCI may have succeeded in eventually getting all the major racing jurisdictions to harmonize.

Given who is supporting the Bill, it is hard to conclude anything other than the hidden agenda is the banning of raceday Lasix in all jurisdictions. Even if you favor a Lasix ban, it would be hard to sustain an argument that necessitated creation of an additional layer of oversight consisting primarily of people who know little about horseracing, and raising the already stiff amount horseplayers pay in the form of the takeout.

WHOA and the other Bill supporters are making an end run around the existing system because they have not been able to get their way by pushing the racing commissions. It is incumbent on these groups to make their argument irresistible if they expect to get their way.

The Barr-Tonko legislation in its current form is at the least flawed and at the most unnecessary. I believe most horseplayers would agree the discussion of medication and drug standards, enforcement, and punishment needs to occur. Harmonization of rules across jurisdictions should be part of that discussion. And when those discussions occur, ALL the stakeholders need to be represented. If HBPA, ARCI, WHOA and the rest of the Coalition for Horseracing Integrity don’t agree to start discussions with a sincere intent of reaching consensus, we may all find ourselves living in a regime none of us really wanted.

 

(Note: I want to make it clear up front that I thank the DRF for doing the survey referenced in this piece. It was an important effort and the questions they asked were very relevant. If I make some criticisms or attempts at humor below, they are not meant at the expense of DRF. They did their job and it is up to us to continue the discussion.) 

The Daily Racing Form (DRF) released the results of an online survey on the priorities horseracing must address. There were 1,860 respondents to the survey, which seems like a disappointing amount considering how many people either go to the track or bet remotely. In fact, only 70 oercent of the people who took the time to respond identified themselves as bettors or racing fans. I’m sure a portion of the other 30 percent were animal rights supporters, especially since the number one issue for the group that either didn’t bet or bet less than $5,000 a year was animal welfare. You can decide whether the survey was representative of the broader fan base, but in any case the results were worth talking about.

While passionate discussions about Lasix have dominated many racing message boards, the 1,860 respondents did little to resolve the schism over the race-day use of the medication. 41 percent said they supported the use of race-day Lasix, while 42 percent said they were opposed. That only adds up to 83 percent because 17 percent of the folks answering the survey had no opinion.

Are you kidding me? This is racing’s equivalent of the issue that divided the states in the mid 1800s’s. It is stunning to imagine almost a fifth of the people were apathetic about Lasix. I bet I could grab a hundred people randomly at the mall and ask them if the Ludovico Technique is a promising cure for youth violence and get less than 17 percent no-opinion.

I can’t repeat the names I’ve been called for suggesting that race-day Lasix isn’t the seminal issue of our time. In fact, 41 pro, 42 con and 17 what-the-hell-is-Lasix is disappointing whether you are pro, con or totally apathetic. Nobody gets to say “aha” with those numbers.

With the DRF survey the anti-Lasix crowd had a chance to drive home the point that Lasix, which if I am reading the Water, Hay, Oats Alliance (WHOA) literature correctly is a scourge along the lines of the Black Death between 1346 and 1353, by proving that once racing fans (and another 30 percent who apparently can’t resist anything survey monkey puts out) have a chance to make their opinions known, they will overwhelmingly send racing a message – no more race-day Lasix. Not only did the survey fail to arouse the ire of whomever it was that submitted responses, when asked where race-day Lasix fell in terms of importance to the health of racing, the survey mouse-clickers placed it ninth of ten issues, I’m guessing behind overpriced food and too many toilets with “out of order” signs on them.

The survey broke down the information even finer. Support for race-day Lasix was strongest among racing fans that bet no money or less than $5,000 a year. That group supported the ban 50 percent to 35%. The group that bet more than $25,000 a year favored race-day use 45 percent to 35 percent. This may just be me, but for obvious reasons I’m inclined to put a steep discount on the opinions of most of the group that doesn’t bet money, mostly because I wonder how many of them are really interested in the long term success of racing. The people primarily supporting racing are more fine than not with Lasix.

So, the survey was no help to either side of the Lasix issue. However, the DRF story pointed out that “bettors overwhelmingly believe that horsemen are getting away with using illicit drugs that affect horses performance on race-day despite little evidence that cheating is widespread in racing, such as a glut of positive drug tests for illicit drugs or the seizure of illegal substances at racetracks or training centers.”

 They followed that up with the statistic 78 percent of all respondents said that states have not been effective in catching cheaters.

This is a real conundrum for racing. How do you catch the cheaters who apparently aren’t cheating? I don’t mean the less than one-half of one percent of the trainers who were cited for overages of legal therapeutic medication. We’ve nailed them. I mean the horsemen using “illicit drugs” and “illegal substances” that racing commissions haven’t been able to find by doing blood and urine tests and searching barns. I watch enough TV to know nobody is more than three mouse clicks away from getting nailed once the alphabet agencies put their mind to finding them, so it’s only a matter of time before that conspiracy is busted wide open, unless of course it has been thoroughly overblown by those who can’t believe losing has anything to do with bad handicapping or betting, or who believe racing management needs a new (federal) paradigm. (I also know that our Navy has been seriously depleted due to all the deaths on NCIS, NCIS Los Angeles and NCIS New Orleans. Their new slogan, Join the Navy and You Might Wind Up as a Corpse on TV, isn’t working very well either.) It would be pretty hard to successfully argue for oversight by the U.S. Anti-Doping Agency (USADA) or federal legislation using existing compliance statistics, so it serves a purpose to promote the idea that illegal drug use is not only rampant, but the stumblebums in charge of finding it apparently couldn’t find water if they fell out of a boat.

The survey also pointed out that the use of illicit drugs was ranked second on the list of the top 10 issues facing racing. I’ll admit, I’m at a loss on how to deal with the illicit drug issue, mostly because the overwhelming perception of the existence of these drugs disallows any finding that the problem is mainly imaginary. If some credible entity did a thorough investigation and didn’t find anything, I’m not sure how much it would change that perception. For example, a Harris poll in 2013 found that 42% of people believe in ghosts, and I can tell you from personal experience that criticizing the thought process of a fervent ghost-believer is a mistake you only want to make once. I’ve said this on a number of occasions, but it is so often true that opinion trumps fact (did I say trump?).

The unfortunate fact is that with nothing more than what seems to be anecdotal evidence, respondents ranked catching illegal drugs as the second most important issue facing racing, and followed that with the need to have uniform medication regulations. Whether or not the proliferation of illegal and undetectable performance-enhancing drugs is the top problem racing faces, the fact that so many people believe it is qualifies it as something racing needs to address. Once and for all horseplayers, horsemen, owners, track management and the administrative governing bodies need to put the issue to rest one way or the other. If the proliferation of illegal drugs is real, then they need to make a public splash about how they will find and eradicate them. And if it is the boogeyman kids see outside their bedroom window, then the stakeholders need to come to firm agreement on that and move the hell on.

You don’t need me to tell you that racing is doomed, doomed I tell you, until this issue is put to bed. There is only one side on the issue of illegal and performance-enhancing drugs – they need to be gotten the hell out of racing and anyone who knowingly tries to gain an illegal advantage has to be dealt with without equivocation. And then let’s get to the really important issues like takeout rates, gambling taxes and reporting requirements, and field size.

I’ve written extensively on the problem with the racing structure. Tracks are required to pay a tithe to state and local governments and are disallowed from functioning as most other private businesses function. You have revenues, you have costs, and the difference between the two is profit (or loss) on which you should pay taxes. I get the states’ argument they have expenses related to the administrative governing bodies and testing, but that is an artifact of the state being a partner in the business, something that  would be anathema to most capitalists.

Look at the On-track percentages of handle that Santa Anita pays (based on 35% straight and 65% exotic wagering):

• State license fees          6.24%
• UC Davis (testing)        0.10%
• City Fees                            0.33%
• CTBA                                   0.47%
• Track Revenues            6.23%
• Purse Revenues            5.15%
• Total Takeout              18.52%

How do you get the take down to 12 percent? Cut the state share? CTBA? Agree to lower revenues to cover track expenses? Cut purses? The only way that has been guaranteed to work to cut the take is to not run a race meet at all, pay a few percent for the racing signal, take the small amount you need to cover operating expenses, define your profit and distribute the rest in the form of rebates to whales.

And good luck on the gambling tax issue. If you find a dollar on the street, the IRS wants its cut. The only group lower on the list for tax relief than gamblers is legal marijuana retailers. Who is your champion? Which politician is going to run on a platform of cutting taxes for the horseplayer? Even the trickle down zanies never mention giving the horseplayer his break. In fact, we are below DEAD people for tax cuts.

As for field size, I’ve recently  (halveyonhorseracing.com/?p=2435) written about this. I know many horseplayers long for Hong Kong with its 14-horse fields every race, but those large fields primarily benefit the heavy bettor by spreading action and increasing the payout on smaller probability combinations. Believe me, unless you are betting $3-5,000 a week, you’ll do much better with 8-10 horse fields. Yes, five and six horse fields are bad for everyone, but 720 combinations for a trifecta (as opposed to 2,184) gives the less capitalized bettor a running chance.

The final issue the DRF reported on is the overwhelming support of a federal solution. I’m just going to say this. Think that one through. The USADA right now performs about 9,000 tests a year. How do you think they are going to get to 325,000 without using the same testing labs states are already using? And if you’ve read some of the recent press, USADA has been pilloried for their contract work for boxing. Once again, you have to believe the imaginary illegal drugs have the sport in a death grip to conclude there will be some major turn around under USADA. You have to believe in a conspiracy of epic proportions where horsemen, stewards and the racing commission are either suppressing drug use or refusing to prosecute it. You have to believe that the testing labs with multi-million dollar equipment are purposely not finding the as-of-yet unidentified illegal drugs, but somehow the USADA will have them find it. You have to be in a fog to believe people like Joe Gorajec didn’t pressure the labs to find anything and everything in a sample that was prosecutable.

I ask one thing. Think this through. Get all the gory details before you decide Barr-Tonko is the answer. Don’t leave this to some yet to be named bureaucrat to write the rules.

Oh and ask yourself one question. Is the Congress that can’t even pass a budget among other myriad failures the right entity to save racing?