A recent New York Supreme Court ruling invalidating that state's out-of-competition equine drug-testing could have implications in other jurisdictions and the Thoroughbred racing industry.
Out-of-competition testing is aimed at detecting prohibited substances—primarily blood-doping agents—that cannot be detected in post-race tests. Regulators say the drugs targeted by out-of-competition testing can be detected only for a short period of time, but can have a lengthy positive effect on a horse’s performance.
The regulations usually contain parameters on the location of the horses to be tested, the date range from a race during which they can be tested, and the types of drugs for which they can be tested. As with most other regulations, they vary from state to state, much to the consternation of horsemen.
The horses subject to the testing usually have not raced for a certain period, are located off the racetrack premises, and are being considered to return to competition at some point.
In his Aug. 15 ruling (Out of Competition Ruling), Acting New York State Supreme Court Justice Mark Powers ruled in favor of Standardbred Owners Association of New York and others who filed suit in early 2010 challenging the regulations adopted Dec. 15, 2009, by the New York State Racing and Wagering Board.
Specifically, Powers found that the 180-day testing period under the regulation was “arbitrary, capricious, and impermissibly vague.” Also, the provision that horses to be tested could be up to 100 miles from a state racetrack and outside the state’s borders was also arbitrary, Powers said.
He also said the penalties, ranging from license suspension of up to 10 years, were excessive, and that the regulation failed to limit the testing to blood-doping and related drugs.
“Having considered the parties’ arguments, the (out-of-competition regulations) are so lacking in reason as to require nullification in their entirety,” Powers wrote. “This court sees little progress offered by these (regulatons) to address the pervasive problem of performance enhancement. Indeed, the board may well be ‘shoveling sand against the tide.'
“In this court’s view, there is an inherent unfairness to adopting rules that sweep across an entire indusry looking for one bad apple and subject to all kinds of abuses in implementation and enforcement and without any built-in protections for those affected and with disregard for their legitimate concerns.”
With many other jurisdictions having adopted, or working on, out-of-competition regulations similar to those in New York, Powers’ opinion should serve as a guide for a model rule that could be adopted by the Association of Racing Commissioners International, said Doug McSwain, legal counsel to the National Horsemen’s Benevolent and Protective Association.
“Do I think this case is a game-changer? I think it very well could be,” McSwain said. “I think it could tilt the balance in the negotiations at the model rules level in favor of making a more reasonable rule.”
Alan Foreman, chairman and chief executive officer of the Thoroughbred Horsemen’s Association and general counsel to the New York THA, said he believes the New York ruling would have little impact on regulations enacted in other states such as California, Kentucky, and New Jersey because “the fatal flaws that were in the New York rule don’t exist in the other jurisdictions I have seen. (New York’s regulation) was fatally flawed from inception, primarily because the board extended its jurisdiction far beyond the jurisdiction it has by law.”
The regulations challenged by the harness horsemen were also drafted to apply to Thoroughbreds racing in New York. Rather than fight the regulations in court, the New York THA worked with the NYSRWB to amend some of the provisions they found most onerous, Foreman said.
“We took the position that rather than spend money on litigation, we would engage the board in trying to correct and get a proper out-of-competition testing rule because the Thoroughbred horsemen were in support of an out-of-competition testing rule,” Foreman said.
The New York THA’s approach resulted in regulations for Thoroughbreds that “removed most of the impediments from the original rule that were so objectionable,” though it has yet to be adopted by the NYSRWB, Foreman said.
“They have lost two years,” Foreman said of the New York regulators’ efforts to get out-of-competition testing implemented. “They have not adopted the draft rule we have worked out with them, so you are even getting to the nub of the problem, which is trying to root out those who may be trying to corrupt our races with blood-doping agents.
“What mystifies me is that rather than fix this problem, the board has fought this litigation with the harness industry. Why they insisted on litigating, why they just couldn’t back off and say, ‘Let’s get it fixed,’ which is what we tried to do and we think we did, is beyond me.”
McSwain and Foreman agree most horsemen support out-of-competition testing because the types of substances for which the regulations are aimed should not be permitted. But they also agree that in adopting regulations, there needs to be uniformity and the rules need to be fair.
“Horsemen do not want to allow inappropriate blood-doping or other kinds of medications that cannot be detected on race day,” McSwain said. “It needs to be done uniformly and it can be done uniformly if you don’t have chest-beating regulators saying, ‘I don’t care what the model rule says, we’re going to get tougher than that.' ”
“It was supposed to be that any horse on the grounds of a racetrack could be subjected to out-of-competition testing,” Foreman said. “It was that simple. Then New Jersey decided to draft this complicated rule, New York decided to draft its own complicated rule, and Kentucky was going to do it its way and California was going to do it its way.
“This is why the cynics say racing is never going to get its act together. A simple concept of out-of-competition testing became this unorganized, complicated, and in some respects, fatally flawed process. This situation highlighted the regulatory problems that horsemen have been complaining about all across the country, and why it is so difficult to get uniformity.
"You get these jurisdictions that just create their own rules that aren’t well thought out.”
McSwain said the National HBPA has been working with RCI as it considers amending its current out-of-competition testing model rule, and that Powers’ ruling could help provide guidance on how this plays out in the future.
“Horsemen are not against the concept of out-of-competition testing,” McSwain said. “(The regulations) have to be narrowly drawn to make it not arbitrary and to make it constitutional.”