horse racing and drugs

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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.

 

 

 

 

New York’s treatment of Rick Dutrow is a disgrace

Posted by noonante on July 30, 2018
Posted in: Horse Racing, Political/Social commentary, Politics. Tagged: , , , , . 1 Comment

I was initially skeptical of the effort to reinstate Richard Dutrow’s training license, even writing this post.  I have since reviewed many of the documents filed in the case with the New York Gaming Commission, including the transcript before the Commission’s hearing officer.  I now think Dutrow may well be the victim of a bag job orchestrated by the Commission and its bureaucratic predecessor, the Racing and Wagering Board.

In the latest development in the case, the Gaming Commission had one of its typical meetings  –  started late, lasted 20 minutes and had no substantive discussion about anything.  The effort by Dutrow’s attorneys to reopen the case to reconsider his 10-year suspension was discussed prior to the meeting and rejected on a 4 – 2 vote.  It was neither discussed nor explained in the public meeting.

Dutrow has been a controversial figure. He achieved national attention in 2008 when he trained Big Brown to win the Kentucky Derby and Preakness. He did not shy from the media spotlight, displaying an exuberant personality.  He also had a reputation for illegally drugging horses.  When he admitted to using steroids on his horses  –  a legal medication at that time –  it created additional controversy.

In 2010, a search of his office at an Aqueduct barn uncovered three hypodermic syringes filled with xyzaline, a medication used to alleviate lameness and calm a nervous horse. Seventeen days later, a horse trained by Dutrow tested positive for the medication butorphanol in a post-race urinalysis.

The stewards at Aqueduct issued a 30-day suspension for possessing hypodermic needles, and 60 days for the post-race positive in early 2011.  The Racing and Wagering Board then issued an Order to Show Cause why Dutrow’s license should not be suspended or revoked.

The case went to a hearing officer who found against Dutrow on all counts on September 22, 2011. He recommended $50,000 in fines and a permanent revocation of his trainer’s license. The Commission upheld the report of the Hearing Officer in all respects, but reduced the permanent revocation to a 10-year ban.  The ban went into effect in January, 2013, following the completion of litigation.

After Dutrow served three years of the suspension, his attorneys filed a motion with the Commission to modify the penalty to “time served.”  Dutrow was not seeking to relitigate the case, but rather to shorten the penalty in the interests of fairness and justice and based upon newly discovered evidence.

The penalties ordered by the stewards  –  suspensions of 60 and 90 days  –  are significant ones.  It should be noted that both medications are legal therapeutic medications.  Indeed, his attorneys have pointed out that the amount of butorphanol from the post-race test is well within the limits permitted today.  Nonetheless, it was an overage at the time, and both the syringes and medications contained in them are permitted only for veterinarians and not for trainers.

According to the Hearing Officer, it is Dutrow’s “past history,” including “numerous” drug violations and a “consistent inability to abide by regulatory rules” that warranted his permanent expulsion from the racing industry.  In deciding whether Dutrow should be allowed to regain his license, it is necessary to examine that past history.

In the field of employer-employee relations, a cardinal tenet is that termination of employment is the “industrial equivalent of capital punishment.”  While Dutrow is not an employee, the Hearing Officer and the Gaming Commission have deprived someone who has spent his entire career in training horses of the very means to support himself.

So let’s take a look at those “numerous” drug violations.

I reviewed the disciplinary record of Dutrow in New York going back to 2000.  In 2005, he was suspended for 60 days and fined $5,000 for three violations.  In early 2007, he was fined and suspended again for ignoring that earlier Commission order to suspend training.  There was also a Bute positive for which he was suspended and fined.  Since those sanctions in early ’07, he had no violations for medication overages or drug violations in New York until the ones in late 2010.

He also had a record of minor violations in Florida and one in Kentucky for overages of Bute going back to 2007.  There was, however, a suspension and $5,000 fine in New Jersey in November, 2007 for unspecified “conduct detrimental to racing.”  None of the drug violations were for a substance that is not a permitted therapeutic medication.

Between that penalty in November, 2007, and the violations in November, 2010 at Aqueduct, Dutrow had no drug infractions in New York, four in Florida for which he was fined a total of $1,750, and a suspension in Kentucky for a Bute overage.  He did have a number of minor rules violations such as not having necessary paper work on file, and “failure to attend to business in a proper manner, necessitating a late scratch.”

There is a good reason for the rules of racing, and an equally good reason for strict enforcement of them.  That applies with particular force to those pertaining to the use of medications. And I do not question that Richard Dutrow had  –  at one time, anyhow  –  either a cavalier or careless attitude towards those rules.  He is also not the only trainer who has made medication errors or been less than adroit in handling the routine aspects of running the business that is a training stable.

But, his recent record of adherence to the rules is more that of someone who has made considerable improvement in his performance, and not that of someone who is a persistent scofflaw.

Sometimes when reading a recitation of facts in a case, one can jump out as curious.  In the Hearing Officer’s report, it was the way the syringes were found.  The Commission’s Director of Investigations, Joel Leveson, was training staff from NYRA on conducting a back stretch investigation.  They happened to pick Dutrow’s barn, and happened to find syringes filled with medications.  This is curious, of course, because Dutrow is obviously not a favored figure by regulators, and it turned out to be a quite “successful” training exercise.

Three years after the beginning of Dutrow’s suspension, his attorneys received documents pursuant to a “long outstanding” request for public records.  One of the documents was particularly revealing.  John McDonnell was an investigator for NYRA being trained by Leveson on the day of the search of Dutrow’s barn.  McDonnell was a 22-year employee of the New York State Police, finishing his career as a criminal investigator.

This document from the Queens District Attorney became available because McDonnell learned that Leveson had identified him in a court hearing as the person who selected Dutrow’s barn for the search.  McDonnell told the detectives it was not his idea and “he wanted to clear his name.”  He further told them that the entire search of the barn took 10 minutes and that he was “uncomfortable with the sudden discovery of the items.”

In Leveson’s testimony before the Hearing Officer, he denied having selected Dutrow’s barn and “believed” it was McDonnell who picked it.  He also said the entire barn search took 90 minutes.

Given McDonnell’s long service in law enforcement, it is difficult to believe that he would become queasy over  –  shall we say  –  ambivalent testimony.  He was bothered enough by the events that he would only speak with outside law enforcement to express his concerns.

So why is it that a severe sanction handed down by stewards became the basis to start a process that deprived Richard Dutrow of his livelihood?  The same Gaming Commission that rendered this decision is also the one that decided in 2011 to relicense him as fit to be a trainer in New York.  And that was with full knowledge of his supposed notoriety, something that was widely known in the racing industry.

Two months after the stewards’ decision was rendered, the President of the Association of Racing Commissioners International, wrote to John Sabini, Chair of New York’s Racing and Wagering Board, urging him to revoke Dutrow’s license.  That same day, according to Dutrow’s attorneys, the ARCI President also forwarded an email from U.S. Senator Tom Udall criticizing the “light penalty given this trainer’s past doping violations.”  Two weeks later, the Board issued the “Show Cause” notice to Dutrow compelling him to defend his ability to remain as a trainer.

This was also at a time when New York Governor Andrew Cuomo’s administration was gearing up the effort to take control of the New York Racing Association.  The same John Sabini who chaired the Racing and Wagering Board that imposed the ban on Dutrow was also in charge of the effort to discredit the leadership of NYRA based on bogus charges accompanied by threats and intimidation.  (I wrote extensively about this at the time.)

So whether there was a political motive underlying the sanction against Dutrow we may never know.  It is, of course, curious that a Senator from New Mexico had a vested interest in a disciplinary action in New York.  But ARCI’s leadership has been adamantly opposed to federal legislation that would place racing under a national body to attack illegal drugging.  And the Cuomo Administration will use any tactics, no matter how discredited, to further its goals on racing  –  although no one knows what the real goals are.

But Dutrow’s personality, coupled with his widely publicized remarks about anabolic steroids, made him a flashpoint for those with ulterior motives.  One of the curious exchanges between Dutrow and the Commission’s counsel concerned his comments on steroids.  The attorney asked him several times about the publicity his comments generated, including a reference to the “firestorm of adverse publicity for horse racing.”

The use of steroids at that time was legal, and Dutrow honestly answered a question about them.  But honesty is rarely a valued commodity, even when his comments may well have been the catalyst for a ban on the drugs as a typical treatment.

Aside from possible political interference, what we do know, based on the record and statements from Dutrow’s attorneys that have not been contradicted by the Gaming Commission, is the following:

  • Dutrow did not have a serious violation of any rule between 2007 and November, 2010;
  • He was never accused of using any drug that was not a permitted therapeutic medication;
  • Dutrow had a solid reputation as a horseman who took excellent care of his horses  –  even the Commission’s own witnesses at the hearing acknowledged this;
  • Despite the perception that Dutrow was a significant violator of medication rules, not a single horse trained by him experienced a fatal injury in racing or training over an 11-year period;
  • Over 2,000 horsemen and horsewomen have signed a petition supporting his reinstatement, including many of the leading, and most reputable, trainers in the sport;
  • There is a significant discrepancy between the testimony of the Commission’s Director of Investigations and an experienced law enforcement figure who was present during the search that discovered the syringes with medications;
  • While the Hearing Officer’s decision to permanently revoke Dutrow’s license was predicated on his “past history” of rule violations, that portion of the decision consisted of a mere five sentences and did not cite a violation in the preceding three years;
  • The Commission determined Dutrow was fit to be issued a trainer’s license in 2011.

I do not know Mr. Dutrow and have never met him.  This is a record, however, that is strongly suggestive of a determined effort to “get” Richard Dutrow regardless of the merits.  I am well aware of all the buzz concerning him.  But depriving a person of his livelihood requires more than rumor and innuendo.

The Gaming Commission’s behavior at its recent meeting is a disgrace to not only the taxpayers and residents of New York but to the racing industry.  The petition before them was to reopen consideration of the 10-year ban.  That they would neither discuss this in public nor offer an explanation is a slap in the face to the entire racing industry, of which many reputable figures support Dutrow’s reinstatement.

The Gaming Commission is a public entity, the members of which are mostly appointed by the Governor.  The Dutrow matter is of public import, particularly since the Commission heralded its penalties against him in a press release.  A public airing of Dutrow’s petition could only foster a sense of transparency in government and a perception that integrity in racing is a prime concern.  And it was an opportunity to educate a distrustful public of efforts to combat unwarranted drugs in racing.

Unfortunately, the callous attitude of the Gaming Commission is all-too-typical of an Administration that believes it serves interests other than the public’s.  Their failure to discuss the matter only heightens a sense that there is something to hide, including their conduct in a matter that is now seven years old.

Fed indictments up the ante on drugs in racing

Posted by noonante on November 26, 2013
Posted in: Horse Racing. Tagged: , . Leave a comment

While the horse racing world was focused on last week’s Congressional hearing on racing and drugs, a potentially much more significant event occurred a day later.  The federal prosecutor with jurisdiction over Penn National Race Course filed four indictments, three against trainers and one against a clocker.  The trainers were each charged with federal law violations for conduct contrary to the state’s regulatory standards;  the clocker was charged with falsifying workout times.  The potential penalties are severe  –  imprisonment for up to 20 years and a fine of up to $250,000.

Each of the indictments against the trainers (who are being charged individually, not collectively) alleges they either administered a medication not permitted under Pennsylvania law within 24 hours of a race, or had syringes and medications in their barns that were prohibited by the state.  Two of the trainers, Samuel Webb and Patricia Roberts, were literally caught with the syringe in hand.  The third, David Wells, who is third in numbers of wins at Penn this year, is accused of a four-year pattern of violating Pennsylvania’s medication rules.  Clocker Danny Robertson is accused of fabricating workouts and workout times in exchange for payments from trainers.

Anyone familiar with racing knows  –  or suspects  –  that there are drug violations and that some clockers play games with workout times.  That doesn’t make the business unique since all enterprises have their cheats.  But how does this become a federal crime?  Because the simulcasting of Penn’s racing to other states and countries means the federal laws prohibiting wire fraud and the “use of an interstate facility to promote gambling in violation of state law” come into play.  The wire fraud in the case of both illegal doping and incorrect workout information is that bettors are being deceived by being provided with false information  –  through the internet  –  about a horse’s chances in a given race.  The state law violations are those governing the administration of medications and the recording of accurate workout times.

The hearing in Congress may have received more attention last week, but the federal prosecutions should send a chill down the spine of anyone who is cheating.  Being charged with a federal crime is no small matter, particularly when the potential penalties are as high as they are in each of these cases. There is a reason a federal criminal courthouse is described as the “house of pain.”  Most prosecutions either end in a plea deal or a conviction.  A defendant who escapes with neither is nonetheless looking at substantial legal bills.

The evidence needed for a conviction may not be as substantial as one may think, at least according to the particulars of the indictments against the trainers.  None of the doping allegations specify the drug that was administered or that the trainer attempted to administer.  Nor is there any allegation that a test came back positive.  It is enough that a trainer had a syringe in his or her hand, or that there were syringes or medications in the barn  –  neither of which is permitted under the Pennsylvania regulations when possessed by someone not a veterinarian.

Much of the debate surrounding the issue of illegal drugging centers on testing, the reliability of testing laboratories, and the cumbersome administrative protocols for disciplining those caught.  If you can be charged with a federal crime for merely possessing the instrumentality  –  syringe or drug  –  that could be used to administer an impermissible medication, the racing world could be entering a whole new environment.