Stewards Decision in Intercontinental Case

In the matter of Protest of the Official Order of Finish, 4th Race at Del Mar Race Track on September 3, 2005:

This matter was heard June 5, 2006 at Los Alamitos Race Course by Board of Stewards: Darrel McHargue, Albert Christiansen and Marty Hamilton.

Protester/Owner Marsha Naify, one of the owners of the horse AMORAMA, which finished second in the race, was present and represented by attorney Roger H. Licht. Mr. Licht also represented the other owners of AMORAMA, Woodside Farms, LLC (Christina and Laurent Zilber). Protester Jim Cassidy, trainer of third place finisher TICKER TAPE, was present and represented himself and the owner of Forging Oaks Farm (James Peyton). Protester Jim Ford, owner of the fourth place finisher KATDOGAWN, was present and represented himself and owner John Cuchna. Attorney Steve Schwartz was present and represented Juddmonte Farms, Inc., the owner of first place finisher Intercontinental.

During the hearing the parties were afforded the opportunity for argument, examination and introduction of exhibits. Upon receipt of arguments and documentary evidence, the record was closed and the matter deemed submitted.

BACKGROUND
The horse INTERCONTINENTAL raced in the Palomar Breeder's Cup Handicap at Del Mar and won the race on September 3, 2005.
At that time, Intercontinental had been placed on the bleeder list by the official veterinarian, which allowed the horse to receive pre-race administration of prophylactic medication (furosemide) to control exercise induced pulmonary hemorrhage.

After questions arose as to a possible late administration of bleeder medication for the horse, the matter was investigated. It was established through the investigation, Intercontinental did receive her bleeder medication twenty minutes after the allowable time or thirty-five (35) minutes past the time for the administration as outlined in the rule.

The California Horse Racing Board waived the time restriction as outlined in California Horse Racing Board rule #1754 (Protests) pursuant to CHRB rule #1407 (Extensions for Compliance) which allowed participants in the race to lodge a protest.

Protests were lodged by owners Marsha Naify and Jim Ford prior to the hearing and trainer Jim Cassidy lodged his protest at the hearing.

There was no dispute as to the facts regarding the late administration of bleeder medication and those facts were so stipulated on the record. Also, all issues pertaining to the Board waiving the 72-hour restriction following the running of the race were stipulated to as non-issues.

ISSUE BEFORE THIS BOARD
Should a horse that raced in a race and won purse monies be allowed to retain purse monies after receiving a late administration of bleeder medication which is a violation of California Horse Racing Board rule 1845 (Authorized Bleeder Medication).

Finding of Facts

1. The horse Intercontinental raced in the fourth race, the Palomar Breeder's Cup Handicap, on September 3, 2005 at Del Mar Race Course and finished in first place.

2. The official order of finish for the race is as follows:

1st - Intercontinental
2nd - Amorama
3rd - Ticker Tape
4th - Katdogawn
5th - Cotopaxi

3. Intercontinental was properly placed on the Bleeder List by the Official Veterinarian and received a late administration of authorized pre-race bleeder medication.

4. Intercontinental received its bleeder medication treatment at 12:10 p.m., twenty (20) minutes after the permissible grace period for furosemide or thirty-five (35) minutes past the four (4) hour time restriction as stated in California Horse Racing Board rule 1845.

5. The horses that raced in the Palomar Breeder's Cup Handicap had been placed on the bleeder list by the official veterinarian and were treated with a pre-race administration of furosemide.

6. Horses that qualify for race day bleeder medication (furosemide)* must receive that administration four hours prior to the post time for that race with a grace period of fifteen (15) minutes.

7. It is a statewide policy that a grace period of fifteen (15) minutes is allowed, i.e., all horses on the bleeder list may receive the treatment up to three hours and forty-five minutes ahead of the scheduled post time for the race.

8. Had the Board of Stewards at Del Mar Race Track known prior to the running of the race that Intercontinental received a late administration of bleeder medication the horse would have been declared from the race.

9. Dr. Amy Nevens gave the late furosemide injection to Intercontinental and turned in a bleeder slip that had an incorrect time of administration rather than the actual time of the treatment. She also filed a confidential treatment report with an incorrect time of the treatment and not the actual time of treatment.

10. Dr. Nevens was fined seven hundred and fifty dollars for violation of California Horse Racing Board rules 1845(e) (Authorized Bleeder Medication) and 1842 (Veterinary Report) on September 3, 2005. (See Official Ruling OTTS #027)

11. Furosemide is a high ceiling and loop diuretic that is unclassified under California Horse Racing Board Rules and Regulations because it is an authorized medication. Other high ceiling and loop diuretics that are not authorized by the California Horse Racing Board are classified as Class 4. (Reference 1843.2)

12. Scott D. Stanley, Ph.D., chemist for the K. L. Maddy Equine Analytical Chemistry Laboratory at the University of California - Davis, reported in his letter to California Horse Racing Board Senior Investigator Greg Fabbri, dated March 17, 2006, (page 100 – Investigation Report) that after reviewing test sample R45696, collected on September 3, 2005 at Del Mar Thoroughbred Club, there were no significant findings reported for the sample. The sample reported the detection of phenylbutazone and furosemide which is consistent with the reported medications. He also stated, in regards to the urine specific gravity, only samples visually identified during the log-in as dilute are identified for testing gravity. No specific gravity determinations were conducted on sample R45696, therefore, the urine specific gravity would have been in the normal range for post-race samples.

13. The Investigation Report, written by C. Scott Chaney on March 7, 2006, regarding the untimely administration of furosemide to Intercontinental in the Palomar Breeder's Cup Handicap at Del Mar Race Track on September 3, 2005, was entered into the record without objection and will be used as reference in determining issues in this matter.
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* Furosemide is a diuretic for which its accepted and authorized use is in the treatment and control of bleeders, also known as exercise induced pulmonary hemorrhage..

14. In a declaration, taken under penalty of perjury included in the Chaney Report, expert witness in equine pharmacology, Steven A. Barker, Ph.D., stated when asked the question, "Did Intercontinental have an advantage due to the late administration of Lasix (furosemide)"; "the answer to this question is an unequivocal and irrefutable 'NO'."

15. The hearing brief of Juddmonte Farms, Inc., which included an exhibit of the Report to the California Horse Racing Board Medication Committee, was entered into the record without objection and will be used as reference in determining issues in this matter.

16. The Cal Expo Statement of Decision and dissenting opinion of a case with similar circumstances was referred to and considered in this matter. (Pages 49 and 51 of the Investigation Report)

PERTINENT RULES

California Horse Racing Board Rules and Regulations
1405. Punishment by the Board.
Violation of any provision of this Division, whether or not penalty is fixed therein, is punishable in the discretion of the Board by revocation or suspension of any license, by fine, or by exclusion from all racing inclosures under the jurisdiction of the Board, or by any combination of these penalties. The Board may independently punish any misconduct of any person connected with racing.

1407. Extensions for Compliance.
If a licensee fails to perform an act, or obtain required action from the Board, within the time prescribed therefore by these rules, the Board, at some subsequent time, may allow the performance of such act or may take the necessary action with the same effect as if the same were performed within the prescribed time.

1420. Definitions.
As used in these rules:
(r) "Protest" means a formal complaint filed after a race with the stewards or the Board protesting the right of any horse to a place, purse or award in the race, or protesting any decision of the stewards relating to the eligibility, participation or placing of any horse in a race.

1530. Cases Not Covered by Rules and Regulations.
Should any case occur which may not be covered by the Rules and Regulations of the Board or by other accepted rules of racing, it shall be determined by the stewards in conformity with justice and in the interest of racing.

1592. Ineligible Horse to Be Disqualified.
Any horse ineligible to be entered for a race, or ineligible to start in any race, who competes in such a race may be disqualified and the stewards may discipline anyone responsible thereof.

1750. Stewards to Make Inquiry.
The stewards shall make diligent inquiry into any objection or protest made either upon their own motion, by any racing official, or by any other person empowered by this division to make such protest or objection.

1752. Grounds for Objection.
An objection to a horse entered to race shall be made on the following grounds or reasons:
(a) A misstatement, error or omission in the entry under which a horse is to run.
(b) That the horse which is entered to run is not the horse it is represented to be at the time of entry, or that the age is erroneously given.
(c) That the horse is not qualified to enter under the conditions specified for the race, or that the allowances are improperly claimed or not entitled the horse, or that the weight to be carried is incorrect under the conditions of the race.
(d) That the horse is owned in whole or in part by a person ineligible to participate in racing or otherwise ineligible to own a race horse as provided in this Division.
(e) That the horse was entered without regard to an existing lien as otherwise prohibited in this Division.

1754. Protests.
A protest against any horse which has started in a race shall be made to the stewards in writing, signed by the protestor, no later than seventy-two (72) hours after the race is declared official excluding non-racing days of the meeting. If the incident the protest is based upon occurs within the last two (2) days of the race meeting, the protest may be filed with the Executive Director of the Board no later than seventy-two (72) hours after the race is declared official excluding Saturdays, Sundays, or official holidays. Upon receipt of the protest the Executive Director will assign the protest to an active board of stewards. Protests shall state the specific reason or reasons in such detail to establish probable cause for the protest.

1755. Grounds for Protest.
A protest to the stewards may be made on any of the following grounds:
(a) Any ground for objection as set forth in this Article.
(b) The official order of finish, as determined by the stewards, was incorrectly posted.
(c) A jockey, driver, trainer or owner of a horse which started in the race was ineligible to participate in racing as provided in this Division.
(d) The weight carried by a horse was improper, by reason of fraud or willful misconduct.
(e) An unfair advantage was gained in violation of the rules.

1756. Persons Empowered to File Objection or Protest.
A jockey, driver, trainer or owner of a horse which is entered for or is a starter in a race is empowered to file an objection of protest against any other horse in such race upon the grounds set forth in this article for objection and protests.

1757. No Limitation on Time to File When Fraud Alleged.
Notwithstanding any other provision in this article, the time limitation on the filing of protests shall not apply in any case in which fraud or willful misconduct is alleged provided that the stewards are satisfied that the allegations are bonafide and susceptible of verification.

1758. Inaccurate Protest.
No person shall file any objection or protest knowing the same to be inaccurate, false, or untruthful.

1759. Horse to Be Disqualified on Valid Protest.
If a protest against a horse which has won or which has placed in any race is declared valid, that horse may be disqualified and other horses in the race are entitled to places in the order in which they finished. A horse so disqualified is a starter in the said race and may be placed last in the order of finish, or behind a horse interfered with.

1760. Purse Award or Prize to Be Withheld.
The stewards or the Board may order any purse, award or prize for any race withheld from distribution pending the determination of any protest; and in the event any purse, award or prize has been distributed to an owner or for a horse which by reason of a protest or other reason is disqualified or determined to be entitled to such purse, award or prize, the stewards or the Board may order such purse, award or prize returned and redistributed to the rightful owner or horse. Any person who fails to comply with an order to return any purse, award or prize erroneously distributed shall be suspended until its return.

1761. Appeal from Decision of Stewards.
(a) From every decision of the stewards, except a decision concerning the disqualification of a horse due to a foul or a riding or driving infraction, an appeal may be made to the Board.
(b) Appeals shall be made in writing, stating the reason or reasons for the appeal, and shall be signed by the appellant, appellant's attorney, or appellant's representative. Appeals shall be received by a Board employee at any of its offices, not later than seventy-two (72) hours from the date of the decision of the stewards unless the Board for good cause extends the time for filing.
(c) An appeal shall not affect a decision of the stewards until the appeal has been sustained or dismissed or a stay order issued by the Chairman.

1841. Veterinarians Under Supervision of Official Veterinarian.
Veterinarians licensed by the Board and practicing at an authorized meeting are under the supervision of the official veterinarian and the stewards. The official veterinarian shall recommend to the stewards or the Board the discipline to be imposed upon a veterinarian who violates the rules and he may sit with the stewards in any hearing before the stewards concerning such discipline or violation.

1842. Veterinarian Report.
Every veterinarian who treats a horse within the inclosure shall in writing on a form prescribed by the Board, report to the official veterinarian in a manner prescribed by him the name of the horse treated, the name of the trainer of the horse, the time of treatment, and any other information requested by the official veterinarian. Any such report is confidential and its content shall not be disclosed except in a proceeding before the stewards or the Board or in exercise of the Board's jurisdiction.

1843. Medication, Drugs and Other Substances.
It shall be the intent of these rules to protect the integrity of horse racing, to guard the health of the horse, and to safeguard the interest of the public and the racing participants through the prohibition or control of all drugs, medications and drug substances foreign to the horse. In this context:
(a) No horse participating in a race shall carry in its body any drug substance or its metabolites or analogues, foreign to the horse except as hereinafter expressly provided.
(b) No drug substance shall be administered to a horse which is entered to compete in a race to be run in this State except for approved and authorized drug substances as provided in these rules.
(d) A finding by an official chemist that a test sample taken from a horse contains a drug substance or its metabolites or analogues which has not been approved by the Board, or a finding of more than one approved non-steroidal, anti-inflammatory drug substance or a finding of a drug substance in excess of the limits established by the Board for its use shall be prima facie evidence that the trainer and his/her agents responsible for the care of the horse has/have been negligent in the care of the horse and is prima facie evidence that the drug substance has been administered to the horse.

1843.1 Prohibited Drug Substances.
For purposes of this division, prohibited drug substance means:
(a) any drug, substance, medication or chemical foreign to the horse, whether natural or synthetic, or a metabolite or analog thereof, whose use is not expressly authorized in this article.
(b) any drug, substance, medication or chemical authorized by this article in excess of the authorized level or other restrictions as set forth in this article.

1843.2. Classification of Drug Substances.
The stewards, when adjudicating a hearing for the finding of a drug substance(s) in a test sample taken from a horse participating in a race, shall consider the classification level of the substance as established below:
CLASS 4: Drug substances which are approved by the FDA for human use, or used under extra-label guidelines as defined by the FDA. These drug substances include, but are not limited to human-labeled non-steroidal anti-inflammatory agents, antihistamines, and some analgesics.
b. Drug substances pharmacologically active on the autonomic nervous system, cardiovascular, or respiratory systems.
3. High ceiling and loop diuretics other than those authorized by the CHRB and carbonic anhydrase inhibitors.

1843.5. Medication, Drugs and Other Substances Permitted After Entry in a Race.
(h) In addition to the substances named in subsection (c)(1), any of the following substances may be administered under Rule 1845 of this division within 24 hours of the post time of the race in which the horse is entered:
(1) Furosemide;
(2) Other Authorized Bleeder Medication.

1845. Authorized Bleeder Medication.
Approved prophylactic medication for the control of exercised inducted pulmonary hemorrhage (EIPH) may be administered to a horse on the authorized bleeder medication list.
(b) The official laboratory shall measure the specific gravity of post-race urine samples to ensure samples are sufficiently concentrated for proper chemical analysis. The specific gravity of such samples shall not be below 1.010.
(c) If the specific gravity of the post-race urine sample is determined to be below 1.010, or if a urine sample is not available for testing, quantitation of furosemide in serum or plasma shall then be performed. Concentrations may not exceed 100 nanograms of furosemide per milliliter of serum or plasma.
(d) A horse qualified to race with authorized bleeder medication shall be assigned to a pre-race security stall prior to the scheduled post time for the race in which it is entered, and shall remain there until it is taken to the receiving barn or the paddock to be saddled or harnessed for the race. While in the security stall, the horse shall be in the care, custody, control and constant view of the trainer, or a licensed person assigned to the trainer. The trainer shall be responsible for the conditions, care and handling of the horse while it remains in the security stall. The official veterinarian may permit a horse to leave the security stall to engage in track warm-up heats prior to a race.
(e) A horse qualified for administration of bleeder medication must be treated on the grounds of the racetrack where the horse will race no later than four hours prior to post time of the race for which the horse is entered. The authorized bleeder medication, furosemide, shall be administered by a single intravenous injection only, in a dosage of not less than 150 mg. or not more than 500 mg. A horse racing with furosemide must show a detectable concentration of the drug in the post-race serum, plasma or urine sample. The veterinarian administering the bleeder medication shall notify the official veterinarian of the treatment of the horse. Such Notification shall be made using CHRB Form-36 (New 08/04), Bleeder Treatment Report, which is hereby incorporated by reference, not later than two hours prior to post time of the race for which the horse is entered. Upon the request of a Board representative, the veterinarian administering the authorized bleeder medication shall surrender the syringe used to administer such medication, which may then be submitted for testing.

1859.5. Disqualification Upon Positive Test Finding.
A finding by the stewards that an official test sample from a horse participating in any race contained a prohibited drug substance as defined in this article, which is determined to be in class levels 1-3 under Rule 1843.2 of this division, unless a split sample tested by the owner or trainer under Rule 1859.25 of this division fails to confirm the presence of the prohibited drug substance determined to be in class levels 1, 2 and 3, shall require disqualification of the horse from the race in which it participated and forfeiture of any purse, award, prize or record for the race, and the horse shall be deemed unplaced in that race. Disqualification shall occur regardless of culpability for the condition of the horse.

LEGAL CONCLUSION
The issue of timeliness pertaining to the seventy-two (72) hour time restriction as outlined in rule 1754 (Protest) was not an issue.

All parties stipulated on the record that the Board acted within their authority, pursuant to rule 1407 (Extension for Compliance) and extended the time restriction.

The protests were lodged and accepted as protests on the grounds of rule 1755 (Grounds for Protest), subsection (e), that an unfair advantage was gained in violation of the rule.

There is no dispute that the horse received a late administration of approved pre-race medication (furosemide) which is a violation of rule 1845 (Authorized Bleeder Medication) and had the Board of Stewards at Del Mar had knowledge of the late treatment prior to the start of the race, the horse would have been declared.

It was argued by the protesters that because a specific standard and manner for the administration of Lasix (furosemide) for Intercontinental was not followed by rule, compounded by the fact that the attending veterinarian (Ms. Nevens) filed incorrect treatment forms, cause existed on race day to scratch the horse and this tribunal should scratch the horse, or deem the horse scratched, and take the purse away.

This argument is without merit. A Board of Stewards can not declare a horse from a race that has already run. Declarations or scratches can only take place prior to the running of a race.

The fact is the horse competed so the point is moot.
In this case the horse raced, won the race and was declared the official winner, therefore, to disqualify a horse at this juncture, grounds for protest must be satisfied as stated in rule 1755(e) (Grounds for Protest).

The protesters argue rule 1845 was violated by the late administration of furosemide by the veterinarian, therefore, the horse received a prohibited or illegal medication and cause exists to disqualify the horse Intercontinental.

It is argued by Juddmonte Farms, Inc. and was argued in the dissenting opinion in the Cal Expo case, disqualification and purse redistribution for the late administration of approved medication is not supported by the rules or custom and practice. To wit, it is an unreasonably severe penalty for the misadministration of an approved medication. CHRB rule 1859.5 (Disqualification Upon a Positive Test Finding) requires that a horse, upon a positive test finding of a class 1, 2 or 3 drug substance in a post race blood or urine sample, be disqualified and the purse redistributed. Although the rule does not preclude disqualification of a horse upon the finding of a class 4, 5, 6 or 7 drug substance or the finding of an approved medication in excess of the permitted levels, neither stewards nor the Board disqualify horses based on these types of findings. This is most likely because these findings do not generally carry the presumption that athletic performance is enhanced by these substances and thus horses that test positive do not enjoy an unfair advantage. This is not to suggest that the persons responsible for the violations are not, or should not, be penalized for their actions that led to the positive test. (Finding #13, page 21 -22)

This argument is on point and persuasive although, in this case, we are not dealing with a positive test. The customs and the practices of the stewards and Board are not to disqualify a horse because a medication rule is violated unless the drug is a class 1, 2 or 3.

This argument becomes even stronger upon review of rules 1843, 1843.1, 1843.2 and 1845, which refers to furosemide as a high ceiling loop diuretic this is an unclassified drug (because it is authorized by the Board) and is a legal pre-race race day medication.

In the opinion of this Board, the argument that the horse Intercontinental received a prohibited, or illegal, drug due to the late administration lacks merit on review of the aforementioned CHRB rules.

It was alleged by Mr. Cassidy, trainer of third place finisher Ticker Tape, that in his experience the late administration of furosemide provided an edge to Intercontinental. That contention was unsupported by any evidence, scientific or otherwise.

It was noted by this Board, Juddmonte Farms, Inc. presented in findings 12 and 14, that the urine sample of Intercontinental tested within normal limits and showed no pharmacological evidence that the late administration of furosemide enhanced the performance of the horse.

DECISION
It is the unanimous decision of this Board of Stewards that the horse Intercontinental, official winner of the Palomar Breeder's Cup Handicap run at Del Mar Race Track on September 3, 2005, did not gain an unfair advantage when it raced with a late treatment of pre-race bleeder medication.

The protests are hereby deemed invalid and Intercontinental remains the official winner of the race.

Decision submitted on June 30, 2006.

BOARD OF STEWARDS
Darrel McHargue
Albert Christiansen
Martin Hamilton