Anne M. Eberhardt

KY Panel Approves Out-of-Competition Testing

Out-of-competition testing was approved by Kentucky regulators Sept. 7.

The Kentucky Horse Racing Commission, operating on a tight schedule, approved a regulation Sept. 7 governing out-of-competition equine drug testing with plans to have it in place in advance of the Nov. 5-6 Breeders’ Cup World Championships at Churchill Downs.

The regulation was unanimously approved with a request it be given emergency status, meaning it will take effect when signed by Gov. Steve Beshear. Once signed, the regulation will be legal for six months. During that time, the regulation will go through a legislative vetting process, including public hearings, before a final regulation is adopted.

The regulation was drafted, revised, and debated over the course of several months and sent to the KHRC at the recommendation of the Kentucky Equine Drug Research Council and the commission’s rules committee. The penalty schedule for offenders was the most controversial aspect of the regulation.

The KHRC, after some discussion, approved a first-offense license revocation of between five to 10 years and up to a $50,000 fine. Also, those same penalties would apply to an owner, trainer, or anyone entrusted with a horse’s care refusing to permit a horse to be tested. Horses that test positive under the regulations would be barred from racing in the state for 180 days.

Earlier drafts called for a suspension of one to10 years. At meetings of the joint EDRC and rules committee and in town hall meetings with horsemen, there was also some support for having a mandatory 10-year license revocation for a first-time violator.

The regulation with allow the KHRC 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 and which are specifically identified in the regulation. KHRC veterinary staff members have said that the substances targeted by the regulation can be detected for only a short period after being administered--meaning they would not show up in regular post-race tests--but can have a lengthy positive effect upon a horse’s performance.

The regulation applies to all breeds for which there is racing in the state—Thoroughbred, Standardbred, Quarter Horse, and Arabian.

KHRC member Alan Leavitt, a Standardbred breeder and owner, favored the 10-year penalty, saying it is more in line with regulations in other states and Canada that have out-of-competition testing. He said opposition to a 10-year penalty based on the premise it would be a "lifetime ban" for the violator was without merit because a "death sentence" should be the proper penalty. He also argued that the 10-year penalty would be more consistent and uniform with other states with out-of-competition testing.

"Blood-doping is the greatest threat to the existence of harness racing we have ever had," said Leavitt, the only commissioner to discuss the regulation prior to the vote.

KHRC member and rules committee chair Ned Bonnie said it was questionable whether the mandatory 10-year license revocation would withstand a legal challenge. He said the regulation providing a window of between five to 10 years would be more palatable because it would permit regulators to consider mitigating circumstances when meting out the final penalty.

"We believe a flat-out 10-year penalty could readily run into a lawsuit," said Bonnie, an attorney. "The state would be better served by revoking, rather than suspending, the license for five to 10 years...We believe this is in racing’s best interests."

Under the protocol established under the regulation, a licensee would be required to apply to the commission’s license review committee upon completion of the revocation period in order to be re-licensed. Also, a horse that tests positive under the regulation would be required to have a negative test before it could resume racing following the 180-day ban from competition.

Any horse that tested positive in a post-race test for the substances for which the out-of-competition regulation is aimed would face the stiffer penalties imposed under out-of-competition regulations.

Marty Maline, executive director of the Kentucky Horsemen’s Benevolent and Protective Association, said many of the concerns that owners and trainers had with the regulation were addressed during the drafting of the document. He said, however, that there are still some questions about whether the commission has the right to conduct drug testing on private property over which they have no regulatory authority.

Maline said the KHBPA board would review the new regulation to determine its impact on horsemen.