If you want to start a passionate argument, express an adamant opinion about the absolute insurers rule. I’m sure most of you are familiar with the rule, but just in case, it simply states that the trainer of record is ultimately responsible for the condition of any horse in his charge. In the case of a medication violation, unless there is evidence otherwise, the trainer is assumed responsible. Although it may seem contrary to the foundation principal of American jurisprudence, trainers are presumed guilty and must demonstrate they are innocent.

The courts have provided no relief for trainers who argue they have been denied due process.

The New York Court of Appeals (the court of last resort in New York), held that “…the trainer responsibility rule is a practical and effective means of promoting these State interests–both in deterring violations and in exercising sanctions. The imposition of strict responsibility compels trainers to exercise a high degree of vigilance in guarding their horses and to report any illicit use of drugs, medications or other restricted substances by other individuals having access to their horses. Additionally, the rebuttable presumption of responsibility facilitates the very difficult enforcement of the restrictions on the use of drugs and other substances in horse racing. Indeed, it would be virtually impossible to regulate the administering of drugs to race horses if the trainers, the individuals primarily responsible for the care and condition of their horses, could not be held accountable for the illicit drugging of their horses or for the failure either to safeguard their horses against such drugging or to identify the person actually at fault. It is not surprising, therefore, that trainer responsibility rules have been upheld almost without exception, in other jurisdictions.”  

Pretty amazing logic. Finding out who is actually guilty is just….well, it’s just too hard. According to the court, without the absolute insurers rule, commissions would never get to punish wrongdoers. At least some of us would say, before we get to the point of guilty until proven innocent, shouldn’t we be doing as much as we can to keep violations from occurring and investigating them thoroughly when they do? There are a number of good ideas floating around out there, including scrupulously tracking drugs used and having surveillance cameras on the backstretch. I can’t go to the drug store and buy sudafed without having my personal information scanned into a tracking system, but somehow it is too complicated to require that all drugs administered to horses be tracked through a central, on-track pharmacy? We can’t require detailed records on everything from where a trainer gets his hay to what legal supplements the horse is getting? Can you honestly say, commission rules are doing everything they can to prevent violations, or at least make them easier to investigate, and not just punish them? Apparently, “just too hard” constitutes a rational basis for guilty until proven innocent.

What are the state interests? On the surface to maintain the integrity of the sport. Realistically it is to maximize revenues by ensuring the bettors that racing is clean. Not many people would bet on a game they think is rigged.

I’ve previously written about Wind of Bosphorus, a horse trained by Doug O’Neill. Wind of Bosphorus was found to have oxazepam in its system, and O’Neill was given a suspension and a fine for the positive test. There was no evidence that O’Neill (or his staff) administered the drug; in fact there was no explanation for how the drug got into the horse’s system. Unfortunately for O’Neill, there was also no evidence that someone other than his folks may have been responsible for the presence of oxazepam. Since O’Neill couldn’t prove his innocence, he was presumed guilty under the absolute insurers rule. If Belmont had a surveillance system in place, perhaps O’Neill or the State Gaming Commission may have been able to figure out how Wind of Bosphorus acquired the oxazepam. Maybe I’m in the minority, but I’d sure like to know things like, why would a trainer use a sedative to improve performance, and why is the commission even testing for oxazepam? I’d also like to know just how hard the Commission looked to find the culprit, assuming there was one and it wasn’t simply cross-contamination.

Much of the serious betting public has become disenchanted with what they perceive to be an inability to clean up racing. A group of racing fans, mostly in California, have started a petition drive to improve surveillance and security as well as make penalties for violators  tougher. http://www.ipetitions.com/petition/improved-thoroughbred-surveillance-and-safety

There is also nothing wrong with ensuring a race track knows who is accessing the backstretch. Many office buildings have security at the entrance, and while it can take a few minutes for visitors to gain access, it’s not really that inconvenient. Only allowing access to badged employees and escorted visitors makes complete sense.

Finally, there is the issue of penalties. The petitioners request to provide “appropriate consequences for all those that break the rules governing race day medication” is fine in concept, but leaves a lot of room for abuse by racing commissions that are comprised of political appointees, at least some of whom have fewer qualifications than the average guy who regularly attends the races. Everything is appropriate if the racing commission says it is. I submit the adoption of TCO2 rules, something that may or may not be performance enhancing, fits that category.

I was in Germany this summer and found time to take a day cruise on the middle Rhine between Rudesheim and Boppard. One of the most interesting aspects was the number of small towns that dotted the riverbank, each one with its own castle and its own set of rules, sort of like horseracing. You didn’t have to be a particularly sharp witted baron to figure out there was money to be made charging tolls to boats that wanted to use the river. Now the idea that everyone with a castle should be charging tolls created some problems, and eventually the situation came to the attention of the Holy Roman Empire (sort of like the legislature of the state). The Holy Roman Emperors assumed control of the tolling, and decided which town acquired the ability to charge tolls. As you might imagine, this got to be a pretty political process. The Emperors had three general guidelines: don’t have too many tolling stations, don’t put them too close together, and don’t forget to take care of your supporters. So while there may have only been 12 or so tolling stations at least five kilometers apart operating at any one time, over the course of the thousand years that the system was in place, 79 different places ultimately had castles and tolling stations. Much in the same way, racing is governed individually by the states in which racing is allowed. Only there is no Holy Racing Emperor to make sure the system operates smoothly. We are instead left with racing commissions whose members vary from very qualified to barely qualified. And to compound matters, New York ( or any state) is often barely interested in what New Jersey is doing, much less California – in fact, a state can choose not to be influenced by anything another state is doing, as the CHRB made clear when they said they would not adopt a dual standard to account for the Lasix bump affecting TCO2.

All this is to say

• I don’t trust racing commissions to come up with the fairest, most sensible set of rules, and
• to the extent it is possible, politics need to be taken out of rulemaking.

The complexities of making rules are myriad, and I’ll give you my opinions based on the research I’ve been doing and the conversations I’ve had with people involved in racing.

• The absolute insurers rule need to be examined in light of recent cases. I’ve mentioned the case of Christopher Grove in West Virginia who was found in violation of the medication rules for the drug Coramine, a stimulant. Grove, who wasn’t in the state at the time the violation occurred, and his attorney argued, “As currently applied, the rule is overly broad and provides uncircumscribed power to the racing commission and the stewards and actually discourages the conducting of thorough and comprehensive investigations in cases where the facts are not obvious. As demonstrated by Mr. Grove’s case, allowing the racing commission and the stewards to penalize a trainer when there is little to no evidence supporting the alleged violations (or even in the state at the time of the alleged violation) amounts to a direct violation of an individual’s state and federal procedural due process rights.” Naturally Grove lost, but two points are well taken. First is that any racing commission needs to conduct an actual investigation and produce findings that clearly implicate the trainer beyond, “the hell with it, we’ll just rely on the absolute insurers rule.” I’ve had people say to me, it’s like blowing 0.14 on a breathalyzer – at that point you’re presumptively intoxicated. No, it’s not like that exactly. It is all but impossible to not blame you for your inebriated state. In the case of a horse, all we know after a positive test is that something happened – we can’t blame the horse for getting jittery and grabbing an oxazepam – but we don’t know what involvement the trainer might have had. For those of you that are strident about assigning trainer guilt, I’ll just ask, if you owned a company and one of your employees embezzled, or a thief broke in and robbed you, should you be punished too under the dictum that you should have known someone would steal and it’s your fault they did? Christopher Grove and his attorney were right on. The absolute insurers rule needs to be revised to force the commissions to conduct an investigation to find the guilty party and punish them.
• There is a lot of griping about the fact that once a trainer is found in violation and given days, his stable can be given over to an assistant trainer. There are those who believe there should be no chance for business as usual for trainers found in violation. Having an assistant assume the stable may somehow seem not quite right, but on the other hand dispersing the stable is perhaps too close to a racing version of Sharia law to be fair. At the least it is something that thoroughly needs to be debated. Steve Davidowitz makes a compromise suggestion that only for violations beyond 60 days should the horses be dispersed. I personally think that whether a stable gets broken up should be dependent on two things: the egregiousness of the violation and the ability of the commission to prove the trainer knowingly and willfully sought to improve the performance of his horse. If a commission wanted to disperse a stable based on the facts and evidence surrounding the Wind of Bosphorus case, then in the words of Mr. Bumble, “the law is a ass – a idiot.”
• The vast majority of owners and trainers, at least the ones I know, are honest people who love the game and love their animals the way any of us loves our housepets. But I would add, there may be owners who are complicit in any purposely wrongful medication or treatment issues, and if that is the case, they need to be punished no less than the trainer. Once again, commissions should be required to get to the bottom of any medication violation or mistreatment of animals.
• There has been a suggestion to adopt the Hong Kong Racing rules, considered by many to be the standard by which racing should be governed. I do not trust the task to individual racing commissions, but I would trust the task to a national blue ribbon commission made up of experts from the various racing constituents – veterinarians, testing laboratories, the betting public, owners, and trainers. Yes, I left out racing commissions purposely. Once this modern set of model rules has been thoroughly vetted and adopted by the blue ribbon commission, states should have a period of time in which to adopt it or face a boycott by owners, trainers and bettors.
• One of my personal gripes is that racing is not the same everywhere. I guarantee you that some of the horses running at Arapahoe Park are there because they are not good enough to compete at Santa Anita or Saratoga. Great if all you are going to focus on is racing in California or New York, but if we have a national commission it needs to account for the differences between A, B, and C tracks. I did a blog on a three tier system for Lasix that understands the horses at C level tracks are not of the same quality as those at A level tracks. Nothing wrong with recognizing that. I realize some people see the issue as totally black or white. I believe this, like most things in life, has shades of gray and I think a national commission could fairly deal with it.

Let me emphasize, the hearts of the people behind the petition are in the right place. Racing commissions, trainers and the betting public need better surveillance and security, and given the cost of monitoring equipment these days, it would be hard to argue cost is a barrier. We do need rules that are fair and will ensure the integrity of racing. I applaud those who are giving their time and energy to the petition and racing. It is only by involvement that we have any chance to change things for the better. I urge you to look at the petition and extend your support in whatever way you think is appropriate.