KY Out-of-Competition Penalties Divisive

An effort to finalize proposed regulations on out-of-competition testing of horses in Kentucky erupted into a lively debate over penalties when two panels met in joint session via teleconference Aug. 31.

The out-of-competition regulations have been drafted, revised, and debated over the course of several meetings and in public meetings conducted by a joint committee of the Kentucky Horse Racing Commission and the Equine Drug Research Council. The Aug. 31 session, in which members of the two bodies participated via teleconference from locations in Louisville, Ky., and Lexington, were designed to finish a proposal to be submitted to the full KHRC at its Sept. 7 meeting.

Four states and Canada currently have out-of-competition testing, which allows the commission to conduct tests on horses regardless of location if there is a likelihood the horse ordered for testing will race in Kentucky. The tests are aimed at detecting prohibited substances, mainly blood-doping agents, that cannot be detected in post-race tests.

During an Aug. 26 meeting, the three-member rules committee and eight-member EDRC settled on a penalty of license revocation of one to 10 years and a fine up to $50,000 for an owner, trainer, or their designated representative when a horse tests positive under the regulations. The same penalties would apply for refusal or inability to have the horse available for testing after being notified, under a set of parameters outlined in the regulation.

But as the rules committee and EDRC, which was empowered by the state legislature to recommend drug policy to the KHRC, went through the final changes in the document Aug. 31, it quickly became clear that some of those involved in the decision-making process were not happy with the earlier penalty recommendation.

Tom Conway, an attorney, horse owner, and rules committee member, recommended that the penalty be amended to between five to 10 years. He and Ned Bonnie, also an attorney and horse owner who chairs the rules committee, said they believed the one- to 10-year penalty provides too much leeway to the regulators who would be imposing the penalties and would not withstand a legal challenge.

State Sen. Damon Thayer, a member of the EDRC who had not attended previous meetings of the two panels working on the out-of-competition testing regulations, strongly suggested that Kentucky adopt the mandatory 10-year license revocation adopted by most of the other jurisdictions that have similar testing.

"I believe we need to have a 10-year penalty so we can have uniformity" with other states’ out-of-competition testing, Thayer said, noting that a stiff penalty would be more palatable to the Breeders’ Cup World Championships. The Breeders’ Cup, which will be held at Churchill Downs Nov. 5-6, has been cited as a reason for Kentucky adopting out-of-competition testing regulations.

Dr. Mary Scollay-Ward, the KHRC equine medical director, pointed out that California’s out-of-competition testing regulation provides only for the same penalty—license revocation of one to three years—applied when a horse is positive for a Class 1 drug in post-race tests.

Bonnie said a 10-year suspension or license revocation would essentially be a life sentence for anyone found in violation of the regulations. He said the five- to 10-year penalty would provide the opportunity for a violator to serve the time and then reapply to the commission for re-licensing. He said that if the commission believed additional time was needed before the individual could resume their participation in racing they would reject the license request.

Alan Leavitt, a KHRC member who attended the Aug. 31 meeting, echoed support for a 10-year penalty. "This is the worst offense you can commit in horse racing," Leavitt said of blood-doping, noting that it has been more of a problem in Standardbred racing than Thoroughbred racing.

A vote on Conway’s motion to recommend the five- to 10-year penalty was 6-4, with the two rules committee members permitted to vote favoring the motion and the EDRC deadlocked at 4-4. (Rules committee member Burr Travis participated in the discussions via telephone but was not permitted to vote because he was not at a location where the teleconference was taking place).

Thayer protested the vote, noting that only the EDRC was empowered by the legislature to recommend drug policy to the commission. In essence, Thayer said, the rules committee votes should not be counted, meaning that the motion failed due to the 4-4 EDRC vote.

Bonnie, however, ruled that the joint vote would be binding.

That set off the lengthy, heated discussion over the manner in which the out-of-competition regulation process had taken place. Conway voiced his displeasure with Thayer’s questioning the joint workings of the rules committee and EDRC after so much work had taken place. Thayer said he had been unable to attend previous meetings due to scheduling conflicts with his legislative duties.

Dr. Jerry Yon, EDRC chair, said he brought the rules committee into the out-of-competition regulation process because so many of the KHRC rules would have to be amended to accommodate the rules.

In the end, the five- to 10-year penalty will be the recommendation considered by the KHRC.

The meeting ended without an official vote on the revised proposed out-of-competition regulation for the commission to consider, an omission that went unnoticed until a reporter pointed it out. At that point, there was no longer a quorum available for a final vote.

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