Anne M. Eberhardt

KY Horsemen Seek Delay in New Regulation

Concerns by owners, trainers, and veterinarians include penalties and procedures.

During a meeting at Churchill Downs Aug. 24, about three dozen horsemen told representatives of the Kentucky Horse Racing Commission it should delay out-of-competition drug testing.

Citing the many aspects of the proposed regulation they find troubling, the trainers, owners, veterinarians, and representatives of horsemen’s groups at the meeting requested that the regulatory body hold off on implementing the regulation until they have had more time to review and comment on the proposals.

Under out-of-competition testing, a racing jurisdiction is permitted to test horses that are located off premises under certain conditions. The tests are designed to detect performance- enhancing drugs that cannot be found using post-race urine and blood testing, according to Dr. Mary Scollay-Ward, the KHRC’s equine medical director.

The regulations are being implemented in Kentucky under an emergency provision that would permit them to be in effect in time for the Nov. 5-6 Breeders’ Cup World Championships at Churchill Downs. Breeders’ Cup has employed out-of-competition testing for the World Championships in New Jersey and California the last three years.

While some horsemen at the meeting questioned even the need for out-of-competition testing, most took issue with the proposed penalties and the logistics of how the regulation will be carried out.

Under the draft proposal, a first offense calls for an owner or trainer of a horse testing positive to receive a license suspension of up to 10 years and a fine up to $50,000. A lifetime license revocation could result from a second offense. A horse that tests positive for one of the prohibited substances would be banned for racing for up to a year.

Refusal by an owner, trainer, and their designated representative to have a horse available for testing after being notified by the KHRC could result in the same penalties as if the horse tested positive. Many of the horsemen questioned the potential problems of the testing protocol, especially for trainers with stables operating out of different states.

"If an owner refuses to have his horse tested, the trainer is suspended; you are presuming somebody is guilty" until they have had a chance to prove they are innocent, said Rick Hiles, president of the Kentucky Horsemen’s Benevolent and Protective Association.

Some of those at the meeting said they believe implementation of regulations such as out-of-competition testing could have the effect of driving some owners out of business.

Scollay-Ward disagreed, saying that if anything such regulations provide a comfort level for some owners. Scollay-Ward and Tim West, assistant general counsel of the KHRC, both assured horsemen that the purpose of the regulation is not to put some horsemen out of business but to serve as a deterrent.

"This rule is not meant to be an opportunity for us to go get people," West said. "This rule is meant to protect the owners and trainers who are doing things the right way. They deserve a level playing field and deserve to put their horses out there and run against other people who are doing things the right way and are not bending or breaking the rules."

In response to many concerns voiced by horsemen over various circumstances under which they could end up with a horse testing positive through out-of-competition testing, Scollay-Ward said the penalty phase of the regulation did not provide for mandatory sanctions so that regulators could consider extenuating circumstances when handing out suspensions and fines.

One example in which discretion could be used are situations in which a recently claimed or purchased horse tests positive through out-of-competition testing once it has been taken over by a new owner or trainer, Scollay-Ward said.

While some of those opined that the KHRC should implement out-of-competition testing that would apply only to the Breeders’ Cup and then take more time with the regulation that would become permanent, Scollay-Ward explained the regulations would go through the regular implementation process even while the emergency regulation was in place. Changes to racing regulations include vetting by a legislative committee and required public meetings to obtain feedback from the public.

Scollay-Ward and West both said that having an emergency regulation does not impede the regular implementation process. West said he and others within the KHRC staff had been working on the regulation for eight months and had reviewed a lot of similar regulations and received a lot of input from those who would be affected by the regulation.

The Churchill Downs meeting was the first of two so-called "town hall" meetings being conducted by the KHRC staff before an Aug. 26 meeting during which the regulations will be considered by the commission’s Equine Drug Research Advisory Council and its rules committee. The full commission is expected to consider the regulation at its Sept. 7 meeting.

West emphasized the proposal offered Aug. 24-25 is only a draft and is subject to change. "This is not set in stone," he said.