California Horse Racing Board

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California made right call on Justify’s drug positive

Posted by noonante on September 19, 2019
Posted in: Horse Racing, Political/Social commentary. Tagged: , , , , , , , , , , , , . Leave a comment

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.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

New York’s tepid response to Santa Anita’s bombshell

Posted by noonante on May 2, 2019
Posted in: Horse Racing, Political/Social commentary, Politics. Tagged: , , , , , , . Leave a comment

When the rash of horse fatalities at Santa Anita in the first months of this year led the track’s owner to announce revolutionary steps to improve both safety and the perception of racing, many hoped this would break the logjam of opposition to any meaningful change in the racing industry.  But as New York’s racing regulatory body demonstrated this week, don’t look for them to take a leadership role.

Twenty-three horses died while racing or training during the first three months of the Santa Anita winter meet.  While it has yet to be determined what caused the fatalities, Belinda Stronach, head of The Stronach Group that owns and runs the track, announced sweeping reforms that have upended the national discussion on equine safety. (Although we often use the phrase “equine safety,” we should never lose sight of the fact that when a horse goes down, there is a human on its back who can also suffer a devastating injury.)

The most controversial of her proposed changes are restrictions on the use of the whip, and a ban on Lasix, the diuretic medication that is permitted in all states and is the only drug that can be administered legally on race day.  While many people in the “outside” world are either sickened or surprised to learn that both whips and drugs are commonplace in racing, racing’s insiders will not be surprised to learn that on Kentucky Oaks and Kentucky Derby days  –  two of the sport’s premier events  –  a grand total of three horses in the 27 races will not be on Lasix.

New York, along with Kentucky and California, is one of the country’s premier racing jurisdictions.  Whether it would join the ranks of those realizing that the sport needed a massive overhaul of its perception among the general public, or side with the entrenched interests seeking to obstruct meaningful change, its Gaming Commission meeting on Monday answered, “we’re sticking with the status quo.”

The Commission’s Executive Director ran through a comparison of proposals by The Stronach Group with the situation in New York.  Where TSG called for an increased program of Out-of-Competition Testing, the New York response was, essentially, “we do that also.”  As I have documented in the past, New York’s program is so anemic that in two periods covering several years, it never identified a thoroughbred testing positive for a prohibited substance.

In what is one of the most significant proposals from California, TSG is proposing complete transparency on veterinary records, including the transfer of records to a new barn. New York responded with its policy in which one type of treatment is sent to a barn claiming a horse.  While this has not received the attention I think it deserves, the overuse of legal medications is potentially a major scandal, and one that transparency of vet records would uncover.

Use of the whip?  The Gaming Commission has previously talked about it and is “still studying” possible changes.

The Commission is also going to study its position on race-day Lasix.  The New York Racing Association that conduct racing at the state’s major thoroughbred tracks has signed on with a coalition  that is proposing a significantly watered-down version of TSG’s outright ban (albeit one that will be implemented gradually).  The Coalition is proposing no Lasix in two-year-old races or in higher level stakes races.  For the vast majority of races, there would be no change.

The Coalition proposal is half-baked.  If the reason for permitting Lasix is a concern for equine safety, why would it not be permitted for the more valuable horses – the stakes horses and two-year-olds?  But I doubt the Commission will ever get to approving the change.  The state’s Equine Medical Director, Scott Palmer, DVM, has already thrown cold water on the proposal, and this is a Commission that meekly follows Palmer’s advice.

New York’s Gaming Commission may actually be the best advertisement for the importance of having a national body overseeing medication rules and discipline for violations.  I do not think a single member of the Commission knows anything about horse racing.  That is not hyperbole;  I mean it literally.

My opinion is based on years of observing their meetings.  They almost never discuss anything.  They operate in secrecy.  The total “conversation” comparing California’s proposed changes with New York took all of four minutes (and there was not a single comment).  The Lasix conversation lasted five minutes. By contrast, California’s Horse Racing Board is comprised of knowledgeable individuals who engage in robust discussions.  They even allow members of the public  –  you know, taxpayers  –  to participate.

The simple reality is that the Gaming Commission is not going to be a factor in any national conversation.  The leading figure in New York on reforms to racing is Congressman Paul Tonko, co-author of the Horseracing Integrity Act 0f 2019.  The leadership of the horse racing community has yet to produce its own voice in favor of reform.  It is an embarrassing indictment on the lack of leadership in this state.

Does New York care about horses being doped?

Posted by noonante on August 8, 2018
Posted in: Horse Racing, Political/Social commentary, Politics. Tagged: , , , , , . Leave a comment

 

 

“[Without an out-of-competition testing program with teeth, you won’t have a real anti-doping program]”

—  Dr. Rick Arthur, Equine Medical Director for California

There can be little doubt that the wide-spread perception of drugging racehorses is the biggest challenge facing the sport.  The New York State Gaming Commission has apparently decided it is not going to do anything to correct that impression.

I have obtained records from the Commission  –  the government agency responsible for ensuring compliance with anti-doping regulations  –  going back to January 1, 2014.  According to the records given to me, there has never been a thoroughbred horse that tested positive under the state’s out-of-competition testing “program.”  In four and one-half years during which tens of thousands of thoroughbreds raced in New York, not a single one had a positive test.

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, OOCT 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 post-race testing is inadequate. Surprise is an essential component of an effective program since it makes it more difficult for cheaters to hide their conduct.

There are numerous industry leaders  –  usually the heads of organizations representing horsemen and horsewomen  –  who cite the statistics on post-race positive tests as proof that there is not a doping problem in racing.  That testing yields a positive rate of less than one per cent.  If that is the only thing looked at, they would be correct that drugging horses is not an issue.

But I have rarely met anyone not paid by a racing organization who believes that significant drugging is not a serious concern.  That includes trainers, professional horse people, owners, bettors and fans.  A survey of those knowledgeable about the sport would quickly produce a list of trainers on any racing circuit who are suspected of illegally drugging their horses.  Suspicions are meaningless, of course, unless there is supportive evidence.

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 the 2016 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.”  McKinsey is returning to this year’s Round Table and, if I were a betting man, I would not think there will be a drop in those numbers.

The perception of doping is never a good thing for any sport.  While baseball has made significant strides  –  as a result of out-of-competiton testing  –  it is still feeling the effects of the “steroid era” when the annual Hall of Fame balloting sparks yet another discussion of whether those who drugged should be denied admission.

The United States Anti-Doping Agency (USADA) has significantly cleaned up the drug abuse in cycling, American track and field, and other sports.  This would be the same USADA that some racing leaders think does not have the capability to bring horse racing to a comparable level of respect.

While the United States is a leader in the testing of human athletes, it is woefully behind the rest of the major horse racing jurisdictions in the world according to Joe Gorajc, writing in thoroughbredracing.com.  In the United Kingdom, France and Hong Kong, out-of-competition testing represents between ten and fifteen per cent of all testing. The comparable figure in the United States is two per cent.

New York is but a portion of that two percent, but nonetheless is aware fully of the importance of out-of-competition testing in identifying illegal drugs that may not show up in post-race testing.  In explaining its reason for adopting OOCT regulations in 2012, 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.”

But, New York’s record on OOCT is nothing short of abysmal.  I have twice been provided with records in response to requests for public records going back to 2014.   A total of 10 harness horses tested positive.  There were no positive tests for thoroughbreds.

That, of course, would be a remarkable record for a sport in cleaning up illegal use of medications.  But we do not know how many horses were tested.  The Gaming Commission’s Director of Communications informed me that New York does not maintain records on the number of horses that were tested and the number of negative tests. So the agency responsible for ensuring the integrity of racing does not keep track of its own performance in reducing illegal doping.

This is particularly disturbing since it did have such records as recently as 2016. In that year, there were “approximately” 1,100 samples taken, of which 21 came back positive.  (I had requested records going back to January 1, 2014.  In October, 2016, the Commission gave me records of six positives, all occurring in March of that year and all for harness horses.  I assume the discrepancy between 21 and 6 can be explained by positives detected after the response to my request for records.)

It is not clear why the Gaming Commission would abandon the collection of data that would be essential information in assessing the success of its efforts in reducing illegal doping.  That is, of course, if they are truly doing anything significant, about which I have serious doubts.

One aspect of their program is that they test horses that are entered in Grade I races with a purse of $1 million or more.  Of course, everyone knows that they purport to conduct OOCT for such races, so only a complete fool would not plan around what may take place.  An essential component of an effective program is the element of surprise, which the Gaming Commission has effectively eliminated for those races.

In my first request for public records, the Commission denied statistical information because records need not be disclosed if “compiled for law enforcement purposes and which, if disclosed, would … reveal criminal investigative techniques or procedures….”

The reasoning underlying this exemption to the public records law is solid: drug cheaters “could evade detection by deliberately tailoring their conduct in anticipation of avenues of inquiry to be pursued by agency personnel.”

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 more than four 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.

For reasons that seem to be inexplicable, OOCT is a topic fraught with controversy.  Several years ago, I heard complaints in New York about constitutional protections, as if horses were covered by the 5th and 14th Amendments.  The California Horse Racing Board recently had a heated meeting in which organizations representing owners and trainers spewed vitriol against California’s Medical Director, Dr. Rick Arthur.  While I have never met Arthur, his reputation is that of one of the most reputable and knowledgeable figures in the sport.

Arthur was frustrated by the lengthy delays in enacting regulations in California.  Even third-party Lasix administration  –  a seemingly uncontroversial issue  –  took over a year to enact.  He explained his rationale for an effective program of OOCT:

“Everyone also knows when we are going to test the horses  –  right after the race.  That is pretty easy to plan around if you are bent on cheating.  Many of the most effective [Performance Enhancing Drugs] are gone well before race day when horses are tested but the performance enhancing effects are still present.  The effects of many drugs can last well past the time the drug is still present, or present at detectable levels.”

But If there was ever a more compelling argument for stricter drug enforcement, it was unwittingly made by the Vice-President of the North American Association of Racetrack Veterinarians who cautioned against the California OOTC proposal because of unanticipated “costs,” according to a piece by Jeremy Balan in BloodHorse Daily:

“There’s the potential loss of owners  –  people are already worried about that …. There’s potential loss of horses.  If these horses are put on the vet’s list for six months, because of anabolic steroids, then that takes them effectively out of the population, and that’s a big issue right now.

There’s going to be a cost and a loss of integrity.  We’re going to have positive tests.  It’s inevitable.”

Uhh … seriously?  Owners will not be coming in if they cannot administer illegal drugs to their horses?  And that’s a negative?

But a loss of integrity does not come from a positive drug test.  It comes from not caring whether horses are being illegally doped.  When a minor league baseball player is assessed a lengthy suspension for testing positive for PED’s, that enhances the integrity of the sport, not diminish it.

New York’s lackadaisical attitude towards OOCT is particularly disturbing for a number of reasons:

  • It typically takes in 20 per cent of the national betting handle, meaning that bettors cannot be confident they are getting an honest product;
  • Transparency is always a beneficial characteristic, but even more so in a business where suspicions and rumors tend to be rampant;
  • Disclosing the identities of trainers and horses who have been tested would be a benefit to all, but particularly to those who are the subject of the “knowing whispers;”
  • Publicizing data on testing is the most effective deterrent there can be.

My fear, however, is that New York’s program  – to the extent it even exists  –  is nothing more than a sham.  How can it be that not a single thoroughbred tested positive over a period of more than four years?  Even the positive tests on harness horses are minimal and come at suspicious intervals.  In 2016, the six positives were in one month.  The positives in 2017 were within two weeks and only for horses entered in that sport’s Sire Stakes.

And if New York cared about illegal doping, it would not have abandoned the collection of data that recorded the number of tests and results.  At a time when the Governor is making a big deal about paying for a license for a child’s lemonade stand, one would hope that those in charge of racing integrity could make the minimal effort needed to track their progress or  –  more likely  –  the lack of progress in curbing doping.

At the Jockey Club’s 2016 Round Table Conference, Jeff Novitzky, the Executive Director of the Ultimate Fighting Championship, relayed his experiences in combatting drug abuse by human athletes.  When he asked athletes why they cheated, the most common responses were that they neither trusted their competitors to be clean, nor did they trust their sport’s oversight body to enforce a level playing field.

Unfortunately for those playing by the rules in New York, as well as for those wagering on its product, there can be no confidence that New York is serious about a racing program with integrity.

There is excellent reporting on OOTC by The Thoroughbred Racing Commentary, including articles by Charles Hayward and Joe Gorajec, as well as The Paulick Report.