Tom Noonan

Horse racing faces yet another major crisis.  Joe Drape of The New York Times reported that 2018 Triple Crown winner Justify tested positive for a prohibited drug after the Santa Anita Derby.  He needed a first or second in that race just to be eligible to run in the Kentucky Derby.  Had he been disqualified in California, he would not have become the 13th horse to win the Triple Crown.

There has been considerable media coverage of this event since the only racing news that gets considerable coverage is when it is negative.  Coming on the heels of the 30 fatalities that occurred at Santa Anita early this year, it is  –  to state the obvious  –  not what racing needs.  It is also, however, an overblown event in which too many in the media are eager to portray it as a scandal.

Justify’s post-race test showed traces of scopolamine.  It is found in the drug Buscopan, but also in jimson weed, a plant that can appear in straw and hay and, thus, represents a possible source of environmental contamination that would appear in a horse’s blood or urine.  When trainer Bob Baffert was notified of the positive, he requested that a split sample be tested.  This is standard practice for drug positives and serves as a check on the original finding.  That sample also came back positive.

Positive findings are reviewed by the California Horse Racing Board, that state’s regulatory body overseeing horse racing.  In an executive session (i.e. private) in August, 2018, the Board decided that the positive was the result of environmental contamination and that no penalty should be assessed against the purse won by the owners or Baffert.  None of this became public until Drape wrote his article that appeared last week.

It was inevitable that a media frenzy would develop as a result of Drape’s piece.  Both National Public Radio and Drape have now said that Justify was ineligible to win the Derby and the Triple Crown.  I expect more from respected outlets such as NPR and the Times.  The most helpful report has been a September 12 piece by Frank Angst of BloodHorse.com, who is the source for much of which I write here.

Many racing fans and industry leaders thought the declining fortunes of racing as a significant feature of America’s sports landscape would be reversed by a Triple Crown winner.  It is perhaps the ultimate irony that it is just such a horse that may prove to be yet another nail in the coffin of a sport that has not recovered from the Santa Anita fatalities this year.

Here is what I am able to glean are the facts regarding the drug positive.  It is based on Angst’s reporting which relies on interviews with Dr. Rick Arthur, the Equine Medical Director of California, and Dr. Mary Scollay, formerly in the same position in Kentucky, and now with the Racing Medication and Testing Consortium.  In my experience writing about racing, and listening to both vets speak in various forums, I have found each individual to be knowledgeable, reliable and credible.

Justify’s urine sample showed a concentration of scopolamine of 300 nanograms per milliliter, in excess of the California threshold for the drug.  According to Arthur, the blood test showed a lower concentration, which was a factor in Arthur’s recommending no penalty to the CHRB.  (It is not clear from the reporting if the concentration in the sample of blood also exceeded California’s limit.)

In addition, Arthur said that the test showed the presence of the drug atropine, which also would be associated with jimson weed if that was the source of the overage.  Atropine would not be in the sample if the source of the scopolamine was Buscopan administered by a human.

As a general matter, the overage of any impermissible drug in excess of the regulatory limit is a violation, and under the industry-wide “absolute insurer” rule, the trainer is responsible for the overage without regard to personal fault.  The penalty for a violation is subject to several factors.

The Association of Racing Commissioners International has produced guidelines on penalties that assign impermissible medications into groups based on the nature of the drug and its effect on equine health and performance.  There is then a classification of penalties that is designed to match the severity of the violation with an appropriate penalty.  California has adopted many of the ARCI’s protocols, although the drug classifiations and penalty guidelines are not an exact match.  This bit of arcana is only worth mentioning because the ARCI moved scopolamine to a lower (i.e., less severe) classification and the CHRB did not immediately follow suit, so that California’s higher classification was in effect at the time of Justify’s positive.

Both Arthur and Dr. Scollay were involved in the decision by the ARCI to lower the classification of scopolamine as part of a comprehensive review of medications on the list.  Angst reports that Scollay and Arthur viewed the lowering of the classification as warranted because there was little potential for the medication being performance-enhancing and because of the high likelihood of environmental contamination.

The delay in changing the classification of scopolamine by the CHRB meant that a more severe penalty could be imposed.  Under the higher level, the horse could have been disqualified.  But California’s penalty schedule did not call for that penalty under the lower classification to which scopolamine was ultimately moved.

What has been missed in much of the commentary on this issue, including the three articles by Joe Drape, is that California’s regulations do not, and did not, require disqualification of Justify even under the higher penalty classification.  The CHRB rules call for deviation from the standards “where the facts of the particular case warrant such a deviation,”  including “mitigating circumstances.”  Among the mitigating circumstances cited is the “probability of environmental contamination.”  This approach is consistent with the model rules recommended by the ARCI.

Another important element overlooked in almost all the coverage is that the rules of the CHRB require that the results of the “official test sample and the split sample shall be, and shall remain confidential … unless and until the Board files an official complaint or accusation.”  I have written often about the self-defeating lack of transparency by government agencies and that was my initial reaction when this story broke.  But if Drape, NPR and many others complain about the CHRB not following its rules, we should expect they mean all rules.  It is not hard to understand why the CHRB has such a rule.  Absent some sort of finding that there has been a violation, owners and trainers should not be subject to the negative publicity attendant with claims determined to be not worth pursuing.

Drape’s article is shoddy, irresponsible and more of advocacy journalism than factual reporting.  Ironically, the third of his articles appeared on the same day as another Times piece pertaining to Brett Kavanaugh that is also being accused of similar defects by critics on both sides of the political spectrum.

Drape, who wrote three articles on this over five days, began with “Justify should not have run in the Derby if the sport’s rules were followed,” completely ignoring the rules mentioned above.  He claimed that the CHRB found environmental contamination even though there was “little evidence” to support it.  And then he said the Board could have acted more swiftly, citing a single case in which a trainer’s employee was “caught on surveillance” administering a prohibited substance leading to a complaint being filed 28 days later.

Because of the Times‘ reputation, other outlets picked up the story as written.  NPR not only did no investigation on its own, but was able to add additional incorrect information, such as Scott Simon saying Justify should have been disqualified until an investigation was complete, applying a standard that is rarely used in any situation not involving an imminent threat to safety.

The following is my assessment of where we are at  –  or should be at:

•  Justify tested positive for the impermissible drug scopolamine in a post-race test following the Santa Anita Derby, in which he needed a first or second to qualify for the Kentucky Derby;
•  Scopolamine is present in the veterinary medicine Buscopan, as well as in jimson weed, a plant-based contaminant that can appear in hay and straw;
• A nationally-recognized expert, Dr. Rick Arthur, has stated that the drug atropine was also present in Justify’s sample, and that atropine would be present in jimson weed, but not Buscopan;
• The Association of Racing Commissioners International, has determined that scopolamine is a drug with less significant effects than originally thought and lowered its ranking on a drug classification scale;
• The CHRB delayed in amending its own rules and did not lower the classification of scopolamine until after Justify’s positive test;
• Under the CHRB’s prior classification, Justify could have been disqualified from his placing in the Santa Anita Derby, but the regulations did not require it;  under the revised classification, Justify could not have been disqualified;
• Environmental contamination such as jimson weed in straw and hay can be considered an environmental contamination warranting a reduced penalty (or none at all) under the CHRB rules;
• The CHRB’s rules mandate that drug positives be confidential unless there a complaint filed.

So despite the hysteria in the media on this issue, I think a fair characterization of the matter would be:  “Justify tested positive for a drug that is not considered performance-enhancing, and the CHRB decided it was likely the result of environmental contamination, and the CHRB did not make this public because that is what its rules require.”

That is not to say, however, that this could not have been handled in a better way by the CHRB.  It is foolhardy to think that a story as explosive as this would not become public and subject racing to the widespread condemnation it is now again undergoing.  Baffert, not someone naïve in the ways of communication, would also had realized this and could have consented to waiving his right to confidentiality to get him and California out in front of the story and being able to control the narrative.

There is also the question of the conflicts-of-interest.  CHRB members may have current and direct interests in horses.  The Chairman at the time of the deliberations on Justify had Baffert train horses for him.  There is a retired jockey on the Board who I think may have been active while on the Board.  I have mixed feelings about this, although it is clear recusal is the remedy when a matter implicates a possible conflict  –  such as the Chairman hearing a case involving Baffert.

But it is good to have people on a board overseeing racing who have some knowledge of the sport.  A contrast is that of the New York Gaming Commission where I do not think a single commissioner has any racing background, leading them to accept staff recommendations often with no discussion, questions or comments.  A simple solution would be to have a mix of backgrounds with strict recusal rules.

But the Justify affair is yet another example  –  as if we needed more  – that horse racing suffers from the lack of a national body with credibility.  For starters, there is no national figure who can comment on this.  Football, basketball and baseball all have commissioners who can speak for the sport.  As much respect as Rick Arthur deserves, he is just one of many state veterinarians who are completely unknown to anyone but knowledgeable observers.

If there were a national body such as the United States Anti-Doping Agency that oversees sports such as cycling and track and field, there would be a recognized entity that could not be criticized for partiality or lack of expertise, and that could be immune from the criticism of a rigged outcome or an “insider’s game.”

If racing’s leaders think this is just another storm that will pass, they are deluding themselves about the cumulative effect these stories have on a public that will ultimately decide the fate of the sport.  And, by the way, another horse died at Santa Anita this week.