A Kentucky Horse Racing Commission committee April 9 moved forward on rule changes that would allow horsemen freedom to argue their case if one of their horses fails a drug test and allow stewards to assess penalties below the minimum recommendations in cases with mitigating circumstances.
The KHRC Rules Committee asked general counsel John Forgy to write up suggested rule changes that address these issues. The proposals will allow public comment before final suggested changes are presented to the full commission in an anticipated special meeting in May.
The recommended Kentucky rule changes follow post-race drug positives against high-profile trainers Graham Motion, Rusty Arnold, and Joe Sharp. Last August, a Kentucky circuit court overturned a methocarbamol positive against Motion, and in doing so determined that the state's absolute insurer rule deprives horsemen of due process by not allowing them a chance, as Franklin (Ky.) Circuit Court Judge Thomas Wingate said, "to present evidence to rebut their liability (for a) violation."
In February, the KHRC rescinded ractopamine positives initially called at the 2016 Kentucky Downs meeting against trainers Arnold and Sharp. KHRC executive director Marc Guilfoil said the positives were rescinded after the KHRC's lab, LGC Science in Lexington, reversed its ruling.
Rules committee chairman Mark Simendinger said Monday's committee recommendations aim for fairness.
"We have an obligation to make sure that cheaters don't break our rules, but we also have to make sure that we don't take away the livelihood of innocent trainers," Simendinger said.
Forgy said the changes would allow horsemen who have a horse test positive a chance to contest the drug positive by presenting "substantial evidence" in contradiction of the finding. Forgy, committee member and attorney John Roach, and National Horsemen's Benevolent and Protective Association general counsel Peter Ecabert all agreed that it's still a substantial legal hurdle for any horseman.
It does give an accused trainer or owner some ability to defend themselves, which was one of Motion's biggest points of frustration in his case.
Allowing horsemen to make such arguments following a drug positive actually is more in line with the Association of Racing Medication International model rule than the current Kentucky rule. The model rule says the trainer is responsible for the condition of the horse unless there is "substantial evidence to the contrary."
Roach encouraged Forgy to model Kentucky's rule after the current Indiana standard, which includes the substantial evidence to the contrary provision, but also notes that this does not allow a trainer to argue that an assistant trainer or stable employee is responsible for a positive.
"It sounds as if we're taking a drastic step and maybe letting trainers off the hook; that's not the case," Ecabert said. "Trainers are still responsible for the condition of the horse and everything that flows from that. The fact of the matter is it gives a trainer a chance to explain that he's done everything correctly and because of either the advances in testing, or contamination issues that he's not responsible for (the horse failing the drug test). It gives him some opportunity to show that."
Forgy also was asked to update a rule that calls for minimum fines and suspensions for the trainer based on the drug class of the finding. The change would allow the stewards to impose sanctions below the minimum recommendation if mitigating circumstances are presented to warrant lighter penalties. Chief state steward Barbara Borden acknowledged that there have been cases where the stewards would have preferred to have such latitude.
Forgy noted that the penalty recommendations in the ARCI Uniform Classification Guidelines for Foreign Substances and Recommended Penalties call for minimum sanctions "absent mitigating circumstances." He believes if Kentucky allows for mitigating circumstances that could move penalties below the minimums called for in each penalty class, such a change would move the state more in line with the model rule.
Committee member Bret Jones said it makes sense to provide the stewards more latitude, and he noted that should the commission believe the stewards are ever becoming too lenient, it can always address such a trend. He said the change should allow for more fairness.
The committee also called for a rule on any foreign substances found in the horse to simplify regulation as to whether a substance is foreign to the horse. The change would repeal current language that considers the potential effects of a substance on a horse. Forgy said that change would address a concern of the circuit court and would be in line with California rules.
Kentucky HBPA executive director Marty Maline applauded the committee's willingness to hear from all parties involved before making any rule recommendations. He said it's clear that the Graham Motion case, which continues in appeals court, was important in moving the changes forward.
"I don't think there's any question that that is the 800-pound gorilla in the room," Maline said. "You have to consider the constitutionality of the rule and if it's fair to the horsemen.
"Graham just wanted to give his side of the story. I think not being able to do that bothered him as much as anything."
Guilfoil said the recommendations were in line with changes that he had hoped would take place. Forgy said it will likely take four to six months to have the rules in place and if they're approved by the full commission they will have to go to legislative committees in Frankfort.