Hello, my name is John Cherwa, and welcome back to our horse racing newsletter, as we present both sides of the out-of-competition testing issue.
Those of you who are critical of how horse racing is run in California might have found Thursday’s meeting of the California Horse Racing Board a prime example of the dysfunction in the industry. Golden Gate was the just the warmup act to the discussion on out-of-competition drug testing. What makes it even crazier is this is a topic that both sides believe is a good idea.
It got rather heated when Alan Balch, head of the California trainers, and Greg Avioli, head of the California owners, got into heated exchanges with Dr. Rick Arthur, the CHRB’s chief vet. (Last time I wrote about this, I left off the “Dr.” and heard about it from one reader. You know who you are, sonny.)
It was great theater but hardly a moment that those involved can be proud of, especially Avioli and Arthur. At the center of the friction is that Balch and Avioli believed they were assured the topic was going back to committee, which is where it eventually went. Arthur presented it more as an in-the-moment mandate.
One day, you’ll be able to read all the name-calling when the transcript is eventually posted. It’ll be here. (Note to CHRB: NTRA gets its transcripts up in 24 hours.)
Now, this is a serious topic. I could make it easier for you and summarize both sides, but, hey, it’s summer and everyone’s looking for some light beach reading. Well, this isn’t it. (Just finished the latest James Patterson thriller he wrote with Bill Clinton: “The President Is Missing.” Pretty good, despite a painfully slow first 150 pages.)
So, we’re going to let both sides tell their story in their own (edited) words.
Up first, the doc.
“Horse racing tests for more drugs at lower levels than any other professional sport. Horse racing was a leader in sport drug testing for many years, but it has fallen woefully behind as human sport anti-doping has leap-frogged us the last two or three decades. Out-of-competition testing (OOCT) has been a major part of the advancement of human sport anti-doping strategies.
“In reality, horse racing does not have a robust anti-doping program. It can be best described as a medication control program. Medication control is very important and necessary. We not only need to test for performance enhancing drugs (PEDs), as is the focus in human sport testing, but for drugs that impact horse welfare and horse and jockey safety.
“Rightfully, we have paid a lot of attention to drugs that impact horse welfare and horse and jockey safety this last decade and are continuing to do so. Horse racing must also deal with performance hindering drugs that could be used to stop a horse from its best performance, which is not generally considered a problem in human sport.
“Nearly 60% of all anti-doping tests in human sport are OOCT. Why is OOCT so important? Human sport testing does a very good job of detecting relatively short-acting, small-molecule drugs, and so does horse racing. Everyone knows that. 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 PEDs 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. Anabolic steroids, beta-2 agonists and blood doping agents are good examples.
“And this should be clear to everyone: Races are won in training. That is true in human sport; it is true in horse racing. Just as in human sport, we need to pay more attention to PEDs being used in training, and we can only do that by OOCT.
“California does more OOCT testing than other racing authorities in the U.S., but it is still less than 15% of all the horses tested — and that is excluding TCO2 testing numbers. Heretofore our OOCT program has been more show than substance. Why? That is because we do not have regulations to prosecute violators. Yes, we can check that horses have prescriptions for drugs we find in OOCT and whether their veterinarians have properly reported those prescriptions, but those are all paperwork violations, which usually result in warnings.
“We started OOCT testing the first year I became EMD at Cal Expo harness in 2007. We made clear we were focusing on blood doping agents, specifically EPO. Within a month a leading trainer and his veterinarian left Cal Expo for remarkable success back East. Was it a coincidence the veterinarian was subsequently sanctioned for EPO-related violations? I don’t think so. We also identified clenbuterol and zilpaterol abuse with OOCT, anabolic steroid misuse and even odd substances such as GW1516. Look it up.
“I was involved in developing the OOCT program we are discussing here today at the RMTC — of which TOC (Thoroughbred Owners of California) & CTT (California Thoroughbred Trainers) are members. The OOCT program was approved unanimously at RMTC, which makes the CTT’s and TOC’s opposition here today somewhat bewildering. This proposal protects their constituents from unscrupulous competitors trying to take an unfair advantage. The CTT and TOC should be this proposal’s biggest supporters.
“Very simply, the OOCT program we are discussing is based on the WADA Prohibited Substances list with generous, if anything overly generous, exceptions for a few drugs used in horse racing. What we are proposing is a real, recognizable anti-doping program. While structured differently, it is also consistent with international OOCT provisions for horse racing under International Federation of Horseracing Authorities (IFHA) Article 6.
“Here is the question for this board — and the leaders in this sport: Do you want a real anti-doping program or not? Bluntly, without an OOCT program with teeth, you won’t have one. I don’t know about commissioners, but I doubt I have gone a week in the 11-plus years I have been EMD when I haven’t had an owner, trainer or someone else inside the industry complain that we weren’t doing enough to control doping. This is a major step forward for horse racing — if horse racing wants to have a real anti-doping program.
“[Friday], the congressional hearing for HR 2651, the 2017 Horse Racing Integrity Act, will take place in Washington. What message is the CHRB and the California racing industry going to send to Washington for tomorrow’s hearing?”
WWDYTOT? (Well, what do you think of that? Sorry, just got caught up in all the initials and was feeling left out.)
Part of the angst on behalf of the TOC and CTT was that their summary of things was not included in the packet that is distributed to everyone. So, here it is, slightly edited. It’s done by a law firm, so excuse all the extra words and lack of conversational tone:
“The following substantive issues are raised by the regulations as currently drafted:
“• The CHRB has not provided evidence of necessity for the proposed rule changes. The ISOR does not identify any performance enhancing substance detected by the board during its out-of-competition testing as it is currently conducted, let alone one that would enhance racing performance when administered out-of-competition. The ISOR does discuss the results of sample testing conducted by Los Alamitos, in which zilpaterol and clenbuterol were detected in quarter horses, but provides no facts to suggest that the board could not have discovered the use of these substances and disqualified these horses under the rules as currently drafted. The CHRB has presented no evidence to suggest that any increased costs of out-of-competition testing as currently proposed would result in any benefit at all to the board, to licensees, or to the racing public.
“• The proposed regulations make no distinction between horses who are being trained in locations that are not under CHRB supervision, and horses that are in layup who hopefully will return to training and racing. The distinction is critical, given that the proposed regulations ban the out-of-competition use of several medications with legitimate therapeutic uses. The regulations as proposed could result in licensees deciding to forgo legitimate therapeutic treatment for horses who have any prospect, however slight, of making it back to the track.
“• The CHRB has presented no evidence that any of the extensive list of substances it proposes to ban in out-of-competition test samples could affect racing performance if administered in an out-of-competition setting. While certain of these substances should never be administered to a horse for any reason, many others are properly and regularly used by veterinarians to treat medical conditions.
“• The CHRB proposes to improperly restrict or prohibit outright the veterinary use of legally compounded medications, including some on the ARCI’s Controlled Therapeutic Medication Schedule. The board fails to articulate why veterinarians treating horses in layup cannot use medications that the FDA, AVMA, and AAEP agree are appropriate, and which have been in use for decades.
“• The CHRB proposes to extend the trainer-insurer rule to owners of horses who are tested outside the racing enclosure. The imposition of strict liability on owners in this manner is not authorized under the Horse Racing Law, may result in arbitrary and capricious disciplinary proceedings, and could chill horse ownership. Under the proposed rules, an owner could be held strictly liable for a veterinarian’s use of therapeutic medication during a layup, or for an out-of-competition positive test arising from environmental contamination. If anything, a preponderance of evidence standard should be adopted.
“• The CHRB improperly proposes to expand out-of-competition testing to unspecified ‘other biological samples,’ including, presumably, hair testing. Although we recognize that the CHRB rules contemplate saliva testing (Rule 1857) and collection of ‘biological test samples’ and ‘other official test samples’ (Rules 1581 and 1859), the Horse Racing Law defines an ‘official test sample’ as blood or urine only. Furthermore, the CHRB has presented no evidence that testing methodologies for such samples would meet legal tests for the admissibility of scientific and expert opinion evidence. Available scientific evidence demonstrates that they would not.
“• Disciplinary proceedings based on out-of-competition testing of ‘other biological samples’ including hair, would violate the Horse Racing Law, which permits the imposition of penalties only for detection of substances in samples taken after a horse has been entered to race. Further, disciplinary proceedings based on the results of hair testing would violate licensee’s due process rights, given the high risk of error arising from such testing, and would certainly engender further litigation.
“The public comment process exists, in part, to allow industry stakeholders to inform state agencies about possible unintended consequences of a proposed regulation. Further, public comments serve to point out less burdensome but equally effective alternative regulations. CTT and TOC remain willing to engage the CHRB in an effort to modify these proposed regulations to address the concerns set forth above. Toward that end, we request that the board remove consideration of the out-of-competition testing regulations from the June agenda, and follow through on the Medication Committee chair’s proposal to form a working group dedicated to promulgating fair and effective out-of-competition regulations. CTT and TOC stand ready to work with the board in revising the proposed regulations to ensure that cheating is targeted, veterinary treatment of horses in layup is not unduly restricted, and licensees arc not unfairly prosecuted.”
Don’t you just love it when someone uses the word “promulgating”?
OK, readers, it’s in your hands and heads to see who you agree with.
Santa Anita review
Santa Anita finished its season with a huge handle day thanks to a carryover pick six that swelled to more than $6 million. There were 208 winners, who got $20,255. Congrats to all.
In Sunday’s feature, the Grade 3 $100,000 Wilshire Stakes for fillies and mares going a mile on the turf, Storm the Hill for trainer Phil D’Amato pulled the big upset to win by 1 1/2 lengths.
It was her first start for D’Amato, and she paid $21.00, $9.00 and $6.20.
“They were going really fast early and I thought my other filly, Ancient Secret, was in a good spot,” D’Amato said. “But I think Storm the Hill, being a little further off of that fast pace kind of helped her come on strong.”
Ancient Secret was second, and Cordality finished third.
“My filly has speed, but I could see that about four horses were going early, so I decided to just save ground,” said winning jockey Rafael Bejarano. “At the top of the stretch, we were able to get the first jump on her and she gave me a big kick.”
Doug O’Neill was the leading trainer in the spring meeting, and Flavien Prat was the top jockey.
Big races review
A look at graded stakes or races worth more $100,000 or more on Sunday.
Belmont: $100,000 New York Stallion Stakes (Cupecoy’s Joy Division), N.Y.-bred fillies 3 years old, 7 furlongs on turf. Winner: Kreesie ($15.60)
Woodbine: $100,000 Bold Ruckus Stakes, Ontario-breds 3 years old, 6 furlongs on turf. Winner: Eskiminzin $15.00)
Belmont: $100,000 New York Stallion Stakes (Spectacular Bid Division), N.Y.-breds 3 years old, 7 furlongs on turf. Winner: Therapist ($3.10)
Santa Anita: Grade 3 $100,000 Wilshire Stakes, fillies and mares 3 and up, 1 mile on turf. Winner: Storm the Hill ($21.00)
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Now, here is the star of the show, Sunday’s results. See you on Thursday.