With a Kentucky judge in an opinion agreeing with many horsemen's concerns about equine medication and testing policies, the industry group that shapes the policy—the Racing Medication and Testing Consortium—is defending its approach.
The defense follows a Franklin (Ky.) Circuit Court decision that overturned a methocarbamol positive against trainer Graham Motion, which came in Augustin Stable's Kitten's Point after her victory in the 2015 Bewitch Stakes (G3T) at Keeneland. The court opinion on that relatively minor equine medication case could have a major impact on industry's equine medication policies and ajudication, at least in Kentucky.
Circuit Court Judge Thomas Wingate found fault with the methocarbamol threshold developed by the RMTC, because he said it wasn't based in science. Furthermore, he went on to find one of the sport's key regulatory tools, the absolute insurer rule that places responsibility for drug positives on the trainer, to be unconstitutional in Kentucky.
"The (Kentucky Horse Racing Commission) must provide scientific rationale for the imposition of drug regulations," Wingate wrote in his opinion and order. "The promulgation of the methocarbamol threshold, without the reinforcement of scientific evidence, exceeds the scope of the KHRC's authority provided by its enabling act."
Wingate said evidence supplied by the petitioners suggests the RMTC board members who made the advised drug schedule considered unscientific factors.
He also said the absolute insurer rule "deprives petitioners of due process," and that trainers must be allowed to "challenge the liability for a dosing violation."
Peter Ecabert, general counsel for the National Horsemen's Benevolent and Protective Association, applauded the decision.
"The opinion was well-reasoned. The points that Judge Wingate raised were sound and right on with respect to both the requirement that any regulation have a scientific basis, and that, if you're going to have a medication threshold, you can't just impose that based on speculation," Ecabert said. "It must stand on scientific evidence, otherwise it's just an arbitrary threshold with no basis in scientific reality."
Ecabert said, under the judge's opinion on the absolute insurer rule, trainers would still be responsible when a horse fails a post-race drug test, but the rule would be changed to allow them to offer explanations like contamination.
"The judge isn't just totally throwing the absolute insurer rule out, making it no holds barred. He's saying you just throw out the irrebuttable presumption, and make it a rebuttable presumption," Ecabert said. "You still put the responsibility on the trainer to establish that he didn't do something or what he did was totally proper. That's not an easy standard as a rebuttable presumption but irrebuttable is absolute, strict liability."
While horsemen applauded the judge's opinion, the RMTC defended its protocol as scientific and said the decision would negatively impact regulation of the sport in Kentucky.
"(The court decision) has moved Kentucky backward in its regulation of horse racing, putting at risk the health and welfare of horses racing in Kentucky, the safety of jockeys, and the integrity of Kentucky horse racing in general," a statement from the RMTC said. "Furthermore, the court's mystifying ruling, undermining Kentucky's reliance upon the absolute insurer rule regarding trainer responsibility, puts Kentucky out of step with other major racing jurisdictions and undermines its efforts toward national uniformity of regulations.
"The original study upon which this threshold is based was founded on sound science. The thresholds and withdrawal guidance provide the best information for compliance, where an intravenous dose is given at 48 hours or more prior to a race. In fact, this methocarbamol threshold was revisited by the RMTC's Scientific Advisory Committee as recently as last year. Every time a new study comes out on any of the controlled therapeutic substances, the (Scientific Advisory Committee) reviews that data to ensure that the threshold remains relevant. The RMTC stands behind its recommendation."
The court decision said science needs to show that the level of substance in a horse's system on race day would impact the horse's performance.
"The mere chance of effect empowers the KHRC to excessively penalize racehorses for the consumption of virtually any substance," Wingate wrote.
The RMTC called that opinion shortsighted and noted side effects of drugs could aid a horse's performance.
"That question assumes the possibility of pinpointing the exact concentration at which a medication no longer has an effect, in a sport where fractions of an inch mean the difference between winning and losing," the RMTC statement said. "Moreover, it fails to take into consideration the side effects of a medication, which can ultimately affect the outcome of a race.
"Here, the side effects of methocarbamol include sedation. A horse that is quiet in its stall will likely run a better race than one that washes out on race day. Thus, to determine when a therapeutic medication's effects no longer affect the outcome of the race is not a simple determination. It takes expertise. This is the area of expertise that the (Scientific Advisory Committee) has and the court does not."
The RMTC, which represents 23 industry stakeholders, indicated the judge's decision on the absolute insurer rule is out of line with standards in the country.
"The United States as a whole has moved away from the rebuttable presumption standard to the absolute insurer rule," the RMTC statement said. "Kentucky needs to move along with the rest of the country. This is the best way to ensure the integrity of the sport, as well as the health and safety of racehorses. In conclusion, the RMTC vigorously opposes this decision and stands by the KHRC."
The National HBPA noted that there was no vote by the full RMTC board before the statement was issued.
The Racing Officials Accreditation Program advises stewards to hold trainers to a high level of responsibility. The Racing Officials Resource Guide states:
The trainer is responsible for the condition of horses entered in an official workout or race and is responsible for the presence of any prohibited drug, medication, or other substance, including permitted medication in excess of the maximum allowable level, in such horses. A positive test for a prohibited drug, medication, or substance, including permitted medication in excess of the maximum allowable concentration, as reported by a commission-approved laboratory, is prima facie evidence of a violation of this rule. In the absence of substantial evidence to the contrary, the trainer shall be responsible.
National HBPA CEO Eric Hamelback said that, while perhaps a decade ago the current absolute insurer standard may have made sense, as laboratories have improved their capabilities and are testing to miniscule levels, contamination has become a bigger concern. He said in that atmosphere, accused trainers need to at least have the ability to make those types of arguments.
Ecabert said the judge's opinion is adjusting to changing times.
"It's appropriate at a time that you're testing for one-billionth of a gram per milliliter," Ecobert said. "The testing is so precise. ... that it just makes sense that basically the situation has changed from what it used to be. You need to be able to at least consider contamination."
