Joe Drape

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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.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Kentucky clears Asmussen and Blasi in PETA investigation

Posted by noonante on January 19, 2015
Posted in: Horse Racing, Political/Social commentary, Politics. Tagged: , , , , , . Leave a comment

The Kentucky Horse Racing Commission concluded there was no evidence to substantiate claims by PETA that either Steve Asmussen or Scott Blasi “maintained horses in their care in poor physical condition” or subjected any horse to “cruel or injurious mistreatment,” abuse or neglect.  The investigation followed a video produced by People for the Ethical Treatment of Animals, reports by Joe Drape in The New York Times, and a complaint filed with the Commission by PETA.

The seven and one-half minute video was released last March.  It was a disturbing account depicting dead horses and multiple injections being administered to horses.  The “star” of the video was Asmussen’s assistant trainer Scott Blasi whose constant use of a common expletive in its various forms as a noun, verb, adjective and adverb added to the overall shock value of the clip.  PETA claimed it had seven hours of video and a 285-page “report” that were not released publicly.

The KHRC subpoenaed the additional evidence PETA claimed to have, but the advocacy group refused to cooperate.  Nonetheless, the KHRC examined the claims made by PETA and concluded not only that the claims lacked credibility, but that PETA “extensively edited” the video, overdubbed audio, and “presented conversations out of context and contrary to the substance of the conversation as a whole.”  PETA’s undercover investigator who worked for several months in Asmussen’s barns was also determined to lack credibility.

The Commission’s findings were not unexpected.  As disturbing as the video was, it became clear after several viewings that there was no actual evidence of mistreatment of horses.  Similarly, none of the numerous complaints PETA filed with a myriad of federal, state and local government agencies contained evidence that would lead a reasonable person to conclude that either Asmussen or Blasi were mistreating their horses.

Having said that, there are questionable aspects of the KHRC decision.  The most significant was the cavalier dismissal of claims that Asmussen was misusing the prescription drug commonly known as thyroxine.  Thyroxine is a medication with legitimate therapeutic purposes, but also one that has potentially serious side effects.  It was suspected of being a factor  –  if not the cause  –  of several sudden deaths experienced by Bob Baffert’s barn a couple of years ago.  When he stopped the routine administration of the drug, the unexplained deaths also stopped.  Asmussen himself admitted that he “fed” thyroxine in an interview following the PETA claims.

Rather than address the merits of use of the drug  –  which Asmussen acknowledged  –  the KHRC relied instead on questionable statements by a veterinarian who stated that he recommends it for every horse because it improves the quality of its coat, and has been doing it for 35 years.  It is my understanding that is not the purpose of the medication, yet the KHRC concluded that if it is “prescribed for a specific patient,” it is not a violation of the rules.

This conclusion, however, skirts one of the more substantial complaints about the industry’s use of drugs.  Rather than administering drugs to address a diagnosed condition, the perception is that far too many trainers use drugs for performance-enhancing reasons  –  or worse, masking injuries.  Both Baffert and Asmussen admitted using this particular medication for a reason having nothing to do with treating a diagnosed condition.  The Commission should have taken a more forceful stand on this issue.

The other surprising aspect of the Commission’s decision was the inclusion of instant messages exchanged between Blasi and the PETA undercover investigator  –  43 pages of such messages.  Both Blasi and the investigator acknowledged a sexual relationship, and the KHRC concluded this affected her credibility.  Even if that conclusion is warranted, there is something creepy about including the sort of personal material that has little, if any, probative value.

New York learned nothing from PETA video

Posted by noonante on April 8, 2014
Posted in: Horse Racing, Political/Social commentary. Tagged: , , , , . 2 Comments

The New York Racing Association and the state’s Gaming Commission make a big deal of what they call “enhanced security protocols” for four stakes during the year, including Saturday’s Wood Memorial.  The protocols require horses entered in the race to be on the grounds three days before and subject to 24-hour surveillance cameras, as well as other provisions.

One of the requirements is a treatment log to be completed by the veterinarian, which the Gaming Commission then posts on its web site in advance of the race.  The protocols require a “full daily veterinarian’s record of all medications and treatments.”  Both the Commission and NYRA seem content to have an incomplete form submitted unless you consider “pre-race” or “routine” to be an adequate diagnosis warranting the administration of medications.

What is particularly troubling about their lax attitude is that the issue of administering drugs to race horses because you can, and not because it is necessary to treat a condition, is a major issue confronting the sport.  It came up in the now famous PETA video where one veterinarian was quoted as saying all horses in Steve Asmussen’s barn were treated with Lasix because it is a performance-enhancer, and not because it was necessary to treat pulmonary bleeding.  A California investigation into seven sudden deaths in Bob Baffert’s barn found that Baffert had thyroxine administered to all his horses, although he did not even know what the purpose of the medication was.

In a six-part series in Thoroughbred Daily News last summer, the final segment was entitled “Race Horse is Not a Diagnosis.”  Yet we have NYRA and the Gaming Commission not questioning “pre-race” or “routine” as an adequate explanation for their enhanced security protocols.  Even those phrases, however, are a mite more adequate than the vet who simply left the diagnosis part of the state-mandated form blank.  That vet, by the way, is the one featured in PETA’s video describing Lasix as a performance-enhancer.

In the press release announcing the protocols, New York’s top racing officials spouted the expected pablum about their concern for safety and integrity.  There was no explanation for why these steps were taken for only four of the 2,294 races NYRA ran last year.  NYRA CEO Chris Kay said the Wood would be “conducted in the safest and most transparent manner.”

That transparency, however, only serves to demonstrate that NYRA and the Gaming Commission are tone-deaf to the forces buffeting the industry.  If you are going to boast about publicizing vet records, you should think that people may actually look at them.  And if your haphazard acceptance of records that do not even meet your own standards becomes the next subject for PETA or Joe Drape, don’t blame the messenger.

This is an issue about more than how vets fill out a form.  For NYRA and the Gaming Commission, it is about what role they will play  –  if any  –  in bringing changes to racing.  One of those changes must be  adherence to a cardinal principle that drugs can only be administered to a horse to address a specific medical need, and that medical need is documented in the records of the veterinarian.

I realize that when you are trying to attract top horses to one of your signature races it is tempting to let some things slide.  But don’t go around boasting about your commitment to safety when you are willing to accept “pre-race” or “routine” as justification for administering drugs.

Racing authorities crack down on abuse

Posted by noonante on March 28, 2014
Posted in: Horse Racing, Political/Social commentary. Tagged: , , , , , . 2 Comments

That could have been the headline for Joe Drape’s piece in today’s New York Times, but the Times chose to go with “Seamy Side of a Sport:  Prodding Horses With Shocks.”

In today’s article, Drape writes about the number of battery-related incidents throughout the country in which the authorities have taken disciplinary action:  “since 1974 there have been nearly 300 instances” and “[i]n the 2000s alone, there have been 53 buzzer cases.”  But the real attention-grabber is the allegation that Calvin Borel used a buzzer when working Super Saver before his win in the 2010 Kentucky Derby.  There is no allegation that he used one during the race itself.

For those who may have forgotten, last week brought us a disturbing nine-minute video produced by People for the Ethical Treatment of Animals and Drape’s initial report, all based upon a PETA undercover investigator working in the barn of trainer Steve Asmussen.  Drape recounted a litany of alleged abuses, including that Asmussen and his long-time assistant Scott Blasi employed a jockey, Ricardo Santana Jr., who used a “machine” to shock horses.  A machine is a devise that emits electrical current and is also described as a “battery,” “buzzer,” or if you wish to be bilingual, a “máquina.”

I was aware of the allegations regarding Super Saver last week when I wrote this piece about the PETA claims.  PETA had provided me with a number of documents I requested, and the Super Saver part was in a complaint PETA filed with Louisville Metro Animal Services.  It was not included in the PETA video, unlike clips of Gary Stevens and Wayne Lukas laughing about battery use.  (Stevens has since acknowledged having used one 35 years ago when he was 16.)

But I was not willing to drag another name into this sordid mix based upon what PETA wrote in their complaint, particularly since I had serious reservations about the details.  The copies of the documents PETA provided to me had many names redacted, including that of the rider using the buzzer on Super Saver, although it would not have been much of a stretch to assume it was Borel.

The source of the evidence against Borel was provided by  –  according to Drape  –  two Asmussen employees.  Now I realize that track employees will move from one barn to another, but useful context by Drape would have been to point out that Asmussen did not train Super Saver  –  Todd Pletcher did.

One of the Asmussen employees was quoted in the PETA complaint as saying that Borel (presumably) used a buzzer “more than anybody.”  It may come as a surprise to someone who has never been to a track or the backstretch that hyperbole  –  not to mention inaccurate information  –  is not exactly in short supply.  Nonetheless, it was the evidence of their claim that caused my eyebrows to rise  –  and again, none of this is in the Drape piece but is from the PETA complaint.

Borel would supposedly use the buzzer coming off the final turn to get the horse to run closer to the rail  –  giving, of course, a whole new context to his nickname “Bo-rail.”  If he did this twice during workouts, according to PETA’s complaint, then the horse would be apprehensive when it came to a race and Borel was trying to get the horse to drop down against the rail.  I will leave for those considerably more knowledgeable whether having a scared horse heading for home is a good thing.

Then there is the detail that after the Derby, the witness saw Super Saver and that he had a “perfect strip of hide off his shoulder … [at perfect] rail height  –  straight line down the [expletive] horse.”  Borel’s agent was quoted in Drape’s article denying the allegation, saying, “Why would a guy who’s broken 43 bones in his body run a horse into a fence at 35 miles per hour?”  That certainly seems pretty compelling, but it does not really disprove the allegation.

But when you parse the words of the Asmussen employees, there is no actual allegation that Borel used a battery on Super Saver.  It is the two employees “knowledge” of the jockey’s reputation that passes for evidence Borel used a battery.  And one would think that a missing strip of the horse’s hide would have resulted in an inquiry from Pletcher, Kentucky officials or Pimlico officials.

Drape has apparently had more access to PETA’s materials than anyone else.  One would think that as a journalist he has an obligation to provide an accounting of what that access has been, as well as what he has not been allowed to see.  I am not one to reflexively blame the media for news I do not like, but Drape’s past performances of dropping negative horse racing articles during Derby week does call into question his objectivity.  Even in today’s article he mentions two allegations of battery use that did not bear out upon examination.  PETA, in the interest of full accountability, should be making all of their videos available.  They may, however, be hoping to make a big splash themselves during Derby week which would explain why the Super Saver conversations have yet to be released.