An attorney for Edmund Gann said the owner will appeal a July 21 decision by the Arkansas Racing Commission disqualifying It's a Bird from his victory in the April 4 Oaklawn Handicap (gr. II) after the horse tested positive for the prohibited substance naproxen, an anti-inflammatory medication.
In a 4-0 decision, the commission ordered the $300,000 purse earned by the horse forfeited and fined trainer Marty Wolfson $500. The disqualification of It’s a Bird by the commission after a 90-minute hearing July 21 means Runforthedoe and Jonesboro have been elevated to first and second, respectively, in the race. Byron Freeland, attorney for the commission, said the complete order of finish will be changed, with It's a Bird placed last.
Lexington attorney Mike Meuser, who represented Gann and Wolfson at the hearing, said the owner will file an appeal with the Pulaski County (Little Rock) Circuit Court. Pending the appeal, they will also seek a court order to stay the commission’s decision.
"The basis (of the appeal) is going to be they did not establish a violation of the regulation and that entire enforcement of the regulation is arbitrary and capricious because it is prosecuting someone who, everyone agreed, did not affect the outcome of the race," Meuser said. "His vet tells him what the longest withdrawal time in the country is (for naproxen) and he turns up positive and it is a level everyone agrees had no effect on the outcome of the race."
Meuser said no-tolerance rules such as the one in Arkansas are subject to legal challenge because they are arbitrary.
"The rule has to have some relationship to what is being regulated," Meuser said. "If it doesn’t have anything to do with protecting the integrity of the sport, then it is arbitrary."
According to the Arkansas Democrat-Gazette, testimony presented at the commission meeting showed tests conducted by Truesdail Laboratories found approximately 54 nanograms per milliliter of naproxen in It’s a Bird’s blood sample and 300 nanograms per milliliter in the urine sample. (A nanogram is one-billionth of a gram and a milliliter is a unit of volume equal to one thousandth of a liter.)
Dr. Norman Hester, technical director of Truesdail, which has the testing contract for about 10 racing jurisdictions, told the commission the laboratory does not see many naproxen positives, according to the Arkansas Democrat-Gazette. He added that the levels were "easy to detect" and "moderately high" in the samples taken from It’s a Bird, the newspaper reported.
The split sample tested at Wolfson’s request by Industrial Laboratories showed 477 nanograms of naproxen per milliliter in the urine sample and 37 nanograms per milliliter in the blood sample, according to the newspaper.
In telephone testimony to the commission, Wolfson said It’s a Bird was administered the medication around 4-5 p.m. April 30, five days before the Oaklawn Handicap, the Democrat-Gazette reported. He also said he has not had any problems with the levels of naproxen in It’s a Bird in other states where the horse competed, according to the paper, adding "I’ve never had any problems anywhere I’ve gone, except Oaklawn."
The newspaper reported that Dr. Tom Tobin told the commission the level of naproxen in It’s a Bird’s system "had no pharmacological effect" on the outcome of the race.
According to model rules of the Association of Racing Commissioners International, naproxen is a Class 4 drug for which the recommended penalty is disqualification and forfeiture of the purse and a fine for the trainer.