Tom Noonan

“Honest people have a hard time making money.”

—  A backstretch veteran

If you want to curtail the use of illegal drugs in racing, you need an effective program of out-of-competition testing (OCT).  While New York State has regulations authorizing OCT, it appears that it does almost no testing.

In response to a request for records going back to 2014, New York’s Gaming Commission cited six examples of OCT for Standardbreds racing at two of the state’s harness tracks.  The records for Thoroughbreds showed the only testing may have been in the three days preceding $1 million Grade I races.

Out-of-competition testing is not to be confused with the standard post-race testing that occurs following every race for some of the entrants.  Rather, it is done at random, at tracks and off-track facilities, to identify illegal drugs that may not show up in the post-race test, or for which existing testing is inadequate.  Surprise is an essential component of an effective program since it makes it more difficult for cheaters to hide their conduct.

By contrast to the experience of the New York regulatory agencies, Jeff Gural, who owns two harness tracks in New York in addition to New Jersey’s Meadowlands, takes the program seriously and has a full-time investigator who administers tests. Gural doesn’t rely on the government agencies and pays for the testing out of his own pocket.

Gural is a welcome iconoclast in the world of racing who is outspoken on many matters, but none more so than in stopping the use of illegal medications.  He does not hesitate to ban abusers from his tracks, relying extensively on out-of-competition testing.  As he explained in the November 16, 2016, issue of ThoroughbredDailyNews, “without out-of-competition testing, you cannot solve the problem.”  It’s not just the perception of a sport by outsiders that is important, but protecting those who are playing by the rules from unfair competition.

Gural and his investigator discovered the abuse of Cobalt in 2013, before it achieved the international notoriety it now possesses.  Cobalt is a medication with serious  –  potentially fatal  –  side effects.   No state regulatory bodies uncovered the use of Cobalt, but Gural’s investigator did.

Other sports have been dragged into drug testing after much resistance.  Major League Baseball winked at the widely-acknowledged use of performance-enhancing-drugs until it became impossible to ignore.

Perhaps no sport, however, has been as widely exposed as international bicycling.  Lance Armstrong was an American hero with his seven Tour de France wins even amid rumors of his doping.  He denied the claims, citing the fact that he had never tested positive.  Because of the wide-spread complaints about Armstrong’s drug use, the United States Anti-Doping Agency (USADA) investigated, succeeding in obtaining incriminating statements from several teammates.

The USADA report is an indictment of both Armstrong the person and the cyclist.  One of the more revealing episodes demonstrated not only Armstrong’s duplicity, but the extent to which those committed to cheating will go.  Blood doping was a common tool used by Armstrong and his team.  Knowing the duration between doping and the time for the evidence to dissipate, Armstrong once stopped the team bus between the end of one race stage and the hotel where they were likely to be tested.  Intra-venous bags were hung from the overhead racks and the entire team doped, explaining the delay in reaching the hotel by saying the bus had a breakdown.

This past summer, Jeff Novitzky was a featured speaker at The Jockey Club’s annual Round Table Conference.  When I saw that the Executive Director of the UFC was to speak, I did a double-take since the only UFC of which I was aware was the Ultimate Fighting Championship.  The head of that group was speaking to the assembled elite of the Sport of Kings?

But The Jockey Club has become the leading institutional proponent of enhancing the integrity of racing by eliminating medications, both illegal and ones permitted on race-day.  The head of USADA, Travis Tygart, and Edwin Moses, one of the world’s all-time greatest athletes, have spoken in recent conferences.  Novitzky fit right in, describing his use of out-of-competition testing to clean up his sport.

Novitzky has an investigatory career that included Armstrong, Roger Clemens and BALCO of Barry Bonds fame.  He would ask the athletes who were caught why they cheated.  The most common responses were that the athlete did not trust teammates or competitors to be clean.  Most disturbing, however, they did not trust the oversight body for their sport to enforce a level playing field.

Horse racing is not oblivious to the importance of out-of-competition testing.  Joe Gorajec has spent his adult life in the racing business.  For 25 years he served as the Executive Director of the Indiana Horse Racing Commission when Indiana became the first state to adopt the model rule on use of anabolic steroids, the first to regulate Cobalt and one of the first to adopt OCT.

Gorajec spoke at this year’s Saratoga Institute, sponsored by Albany Law School, where he compared the frequency of OCT at important international jurisdictions with the United States.  In the UK, the rate of testing is 12%;  it’s 11% in Hong Kong and 10% in France.  It is one percent (1%) in the US.

New York is a miniscule portion of that one percent, but nonetheless is aware fully of the importance of out-of-competition testing.  In explaining its reason for adopting OCT regulations, the state cited the significance of the rule for enhancing the integrity of racing and the safety of horses:

“Doping agents with these traits are posing a great threat to racing integrity. They threaten the integrity of athletic competitions by having an affect [sic] on race performance that cannot be forecast by the betting public, and that gains an unfair advantage over other horsemen and owners.… When used by healthy competitors, they have the capacity to create dangerous and unfair abilities to perform.”

Yet New York appears to have done practically nothing to achieve those goals.

I received records from the Gaming Commission in response to a public records request covering the period going back to January 1, 2014.  In that period, only six Standardbred horses were identified as testing positive as a result of out-of-competition testing.  No Thoroughbreds tested positive  –  as in, none.

All six Standardbreds tested positive for Cobalt.  Five of the six had previously tested positive for Cobalt in a post-race test.  One can certainly wonder about the acumen of those who continued to administer a prohibited drug after a positive test, but they are rather obviously not in the group adept at cheating.

Among the records I requested were those for the number of tests conducted by the State of New York for a period going back almost three years, as well as the identities of the trainers whose horses were tested, and why they were tested.  While the Gaming Commission provided me with records of the six positives, and the New York Racing Association gave me a generic policy, both denied my request for the other information.

The public records law presumes that records maintained by government agencies such as the Gaming Commission and the NYRA Board are public.  There are limited exceptions, including the one used by the Commission and NYRA in denying significant portions of my requests.  For example, records need not be disclosed if “compiled for law enforcement purposes and which, if disclosed, would … reveal criminal investigative techniques or procedures….”

Both the Gaming Commission and NYRA explained their reasoning supporting this exemption:  Drug cheaters “could evade detection by deliberately tailoring their conduct in anticipation of avenues of inquiry to be pursued by agency personnel.”

And I do not quarrel with either agency’s decision to withhold records that would assist the drug cheaters in evading detection.  But that is not the bulk of what I was asking for.

Statistical records concerning the number of tests, the trainers and horses tested, and the results do not allow cheaters to evade detection.  The only way it does assist cheaters is if the number of random and surprise testing is negligible over a period of almost three years.  Then the cheaters would know that New York does not have a serious program of out-of-competition testing.  Of course, they already know that.

One of the more laughable aspects of the “program” regarding Thoroughbreds is that the only evidence of possible testing is for entrants in the Grade I stakes with a purse of at least $1 million.  Both the Commission and NYRA make a big deal of their “integrity protocols” in advance of such races.  One of the protocols is that horses must be on the grounds three days before the race and are subject to out-of-competition testing.  Of course, that belies their stated rationale that informing drug cheaters of their procedures enables them to evade detection.  More significantly, however, is that many of the most troublesome illegal drugs are not going to be administered within that time period.

The Gaming Commission’s refusal to provide access to the OCT records – or even to identify the records at issue – is a remarkable position for a government agency that frequently states its goal of enhancing the safety of its athletes and promoting public confidence in the integrity of the sport.  Providing statistical information and the names of trainers whose horses were tested would greatly enhance public confidence that the sport is doing what it can to make the sport clean.  Of course, if the answer is that New York is not testing in any meaningful way, the perception of integrity in racing plummets even further.

There is also a suspicion that New York’s lack of enthusiasm in out-of-competition testing may be to keep the high profile barns with large stables in New York.  New York recently confronted an analogous situation in which equine safety took a back seat to the need to increase field size.  The NYRA Racing Office at one time had the say on whether veterinarians could scratch horses following a race-day exam.  A spike in fatalities at Aqueduct in 2012 lead to an investigation in which he Racing Office’s role was stopped.

Within the racing community itself, there is considerable controversy over the extent of illegal use of drugs. Those opposing federal legislation that would bring racing under the jurisdiction of the United States Anti-Doping Agency cite the infinitesimal level of positives that are detected by standard post-race testing.  Of course, Lance Armstrong never tested positive either.

The 2011 Jockey Club Round Table featured a report from McKinsey & Company that highlighted the significant negative impression of the sport by both the general public and even racing fans. According to the report, only “22% of the general public has a positive impression of Thoroughbred racing.” Perhaps even more disturbing is that among racing fans, “just 46% … would recommend their friends” follow the sport.

At this year’s Round Table, a slide presentation referenced a survey in which 69 per cent of respondents identified “drugs” as a “very important” issue and 66 per cent cited “integrity issues.”

While the public records law clearly requires the disclosure of many of the records I requested, the Gaming Commission should stand by its frequent statements that the safety of both equine and human athletes is a priority to it, and that enhancing the public’s perception of integrity in racing is a paramount concern.  Hiding behind bogus legal arguments protects only its seeming incompetence and the cheaters who are out there.

When I received decisions from attorneys for the Gaming Commission and NYRA denying access to most of the records I requested, I asked that they reconsider on the basis that statistical records could not possibly “reveal criminal investigative techniques and procedures” permitting the cheaters to evade detection.  The Gaming Commission attorney basically said, “Sue me.”  NYRA’s attorney did not respond.

While I doubt that anyone who follows New York government will be surprised at the arrogance and secrecy of these two agencies, the victims here are not only the public that has a right to know what its government is doing.  More importantly, it is the human and equine athletes who could benefit from a little sunshine.

Transparency would also assist those who do play by the rules to have confidence that the cheaters are being pursued.  It all goes back to what the UFC’s Jeff Novitzky said in his speech last summer.  Cheaters do what they do because they do not trust competitors to play fairly, nor do they trust the sport’s governing bodies to even care if cheating is going on.