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.

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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