The California Horse Racing Board has suspended trainer Ron Ellis 60 days and fined him $10,000 for a drug violation with Masochistic in the 2016 TwinSpires Breeders Cup Sprint (G1).
The ruling came from the stewards at Los Alamitos Race Course Dec. 17, although the decision was ultimately made by the CHRB. Stewards Grant Baker, Scott Chaney, and Kim Sawyer conducted hearings into the case in 2017, beginning May 22, and sent a recommendation to the CHRB for its closed session Dec. 14. The CHRB could have accepted, rejected, or modified the recommended sanctions, and chose to accept the stewards' recommendation. The suspension will run from Jan. 1 to March 1.
Masochistic was disqualified from his second-place finish because of the test, which discovered 30 picograms per milliliter of the anabolic steroid stanozolol and 161 picograms of its metabolite 16-hydroxy stanozolol. On Oct. 28 of 2016, eight days before the Breeders' Cup Sprint, Masochistic had a test that showed 179 picograms of stanozolol and 252 picograms of 16-hydroxy stanozolol. A picogram is one trillionth of a gram.
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The case brought by California Attorney General Xavier Becerra and Deputy Attorney General Vanessa Martinez sought penalties beyond normal guidelines for the overage, which is classified as a "class 3" medication with a "category B" penalty. Those guidelines call for a minimum 30-day suspension (minimum $500 fine) and a maximum 60-day suspension (maximum $10,000 fine).
The state sought a 120-day suspension and a $25,000 fine based on key aspects of the case that featured "aggravating" circumstances.
Ultimately the stewards found the fact that Ellis "knew the risk" from the Oct. 28 test "and decided to run his horse despite that risk," was "extremely aggravating," which led to the decision to hand down the maximum suspension and fine. They opted not to recommend sanctions for Ellis to the level the state was seeking, because "we do not believe the rules allow this action, nor do we believe that the facts demand it."
According to the ruling issued Sunday—almost a year after the positive test in Masochistic was announced by the CHRB—Ellis "shall forfeit all assigned stall space and shall remove from the enclosures all signage, colors, advertisements, training-related equipment, tack, office equipment, and any other property during his suspension." It also said Ellis "shall not transfer any horses to licensed family members or any other licensee who has been an employee of his within the previous year."
During the hearings and in its closing brief, the state presented a scenario that Masochistic was administered a second, unreported dose of stanozolol, after a first dose of 10 cubic centimeters 68 days before the Breeders' Cup Sprint.
CHRB equine medical director Rick Arthur said in a May 23 hearing that "(Masochistic) had a likelihood of a second administration of stanozolol some time between Aug. 29 and the time he was tested (in an out-of-competition test) Oct. 13."
The state also pointed to a veterinarian's list log in October, when four Ellis horses were treated with stanozolol, including an "unknown" horse on the vet's list. Ellis maintained the horse who received that treatment was a then-unraced 2-year-old named Broke Away Grey.
Ellis' attorney Steve Schwartz argued the trace overage was entirely from the initial dose of stanozolol, and was only detectable in Masochistic's system after the race because the substance lingered after the recommended 60 days of withdrawal time.
In his closing brief, Schwartz pointed to the testimony of veterinarian Scott Stanley from May 23.
"This theory of a second administration seems very speculative to me. Is that a fair statement?" Chaney asked during the hearing.
"Yes," Stanley responded.
Another "aggravating" aspect the state argued is that the administration of stanozolol for Masochistic was "performance-enhancing."
Ellis said the stanozolol given to Masochistic was to encourage the horse's appetite, because the gelding lost weight after races. Ellis said the drug was also given to Masochistic because he was a bleeder.
Arthur testified during the May 23 hearing that "there's no evidence that stanozolol improves or treats the condition of exercise-induced pulmonary hemorrhage."
The state's closing brief also declared "Ellis and his veterinarian team used stanozolol with Masochistic so that Masochistic could perform better than his natural abilities. ... All the evidence points to the fact that Masochistic was a small horse that did not have an ample appetite to be a racehorse."
Schwartz, in his closing brief, said, "Use of stanozolol as a therapeutic medication to treat the weight loss resulting from the rigors of racing and inappetence is lawful, appropriate, and well within accepted practice standards for reputable veterinarians." Schwartz also pointed to Arthur's testimony May 23, when he said he used stanozolol "very frequently" during his 30 years of private veterinary practice before he became the CHRB's equine medical director. During the same answer May 23, Arthur said his "use of anabolic steroids dropped dramatically when (other treatments) became available."
Arthur was a frequent target for Schwartz in his closing brief, most notably for, in Schwartz's opinion, Arthur's role in Ellis' decision to run Masochistic in the Breeders' Cup Sprint.
"Dr. Arthur is a regulator," Schwartz said in his brief. "His job is to advise licensees such as Mr. Ellis and try to avoid positive tests. The Breeders' Cup 2016 Horseman's Information Guide directs horsemen to Dr. Arthur for guidance."
Ellis maintained since the process began that he had asked Arthur in the days before the Breeders' Cup Sprint about the risk of testing positive post-race based on the pre-race test results, but was not given a definitive answer.
In a June 15 hearing, Schwartz asked Arthur if he had a "moral obligation to do more to help Mr. Ellis make a better-informed decision."
"No, I do not," Arthur answered.
Schwartz then said in his closing brief that "Arthur is responsible, in part, for the Masochistic positive" and used several pejoratives in describing Arthur's actions before and after the 2016 Breeders' Cup and during the hearings.
"Dr. Arthur does not like Mr. Ellis and the feeling is mutual," Schwartz said in his closing brief. "Dr. Arthur managed the prosecution of this case, advised the deputy attorney general of irrelevant matters to bring up at the hearing, and went out of his way to make Mr. Ellis look bad."
Schwartz, who argued for the minimum penalty in the category because it was Ellis' first offense, said he will meet with his client Dec. 18.
"We're meeting tomorrow to decide our future handling of the case," Schwartz said Sunday.
While the stewards agreed with the state's case that Ellis' decision to race Masochistic in the Breeders' Cup Sprint was an aggravating circumstance, they deemed the state's theory about a second administration of stanozolol to be based on "circumstantial evidence." Regarding the state's contention that Ellis' use of stanozolol was performance-enhancing, the stewards said the drug had the "potential" to influence performance and deemed the circumstance as "aggravating."
"The research tends to indicate that stanozolol ... at the very least has the potential to influence performance," the stewards' document of recommendation to the CHRB stated. "While it is clear that the anabolic steroid does not directly affect performance, it almost certainly indirectly affects performance for the very reason it was administered."
