09/05/2013 11:28AM

Out-of-competition programs face obstacles despite strong support


SARATOGA SPRINGS, N.Y. – Since 2008, regulators in five states, many times with little or no notice, have arrived at racetracks, training centers, and farms to pull blood and urine samples from nearly 10,000 Thoroughbreds. Under new rules allowing the regulators to target horses for drug tests even if they are not entered in a race, they’ve sought out evidence of long-lasting, hard-to-detect drugs that have been rumored to be in widespread use in Thoroughbred racing for a decade, without concrete proof of abuse.

Not one sample has returned a positive.

Though the tests have yet to catch a trainer red-handed, out-of-competition testing represents the vanguard of racing’s effort to guard against drug abuse and cheating since the programs were put in place. Unlike post-race tests, which subject samples to a battery of screens designed to catch stimulants, painkillers, tranquilizers, and other drugs that can directly impact performance in a race, out-of-competition tests look for designer drugs like the blood-doper EPO that offer long-term boosts to physiological processes and for the toxins and venoms that can deaden pain for weeks at a time.

Some say the 10,000 clean tests suggest rumors of drug abuse are overblown. Others say the finding may merely reflect trainers in states with out-of-competition tests have backed away from using the drugs or are using other exotic substances the tests cannot detect. One thing, however, seems clear: Out-of-competition testing will probably be conducted on more horses in more states at deeper levels of the sport.

“It can be a powerful deterrent, and in our sport, it is a perfect bookend to post-race sampling,” said Stuart S. Janney III, the vice chairman of the Jockey Club, at the organization’s Aug. 11 Round Table Conference on Matters Pertaining to Racing, when announcing a pledge by the Jockey Club to contribute $500,000 over the next two years to out-of-competition testing pilot programs.

The expansion and success of the programs, however, face several obstacles. Out-of-competition sampling can be costly and time-consuming, in an era when most racing commissions are struggling to obtain funding. Research and development of new tests to detect exotic drugs that are used well before a race are even more expensive, with no guarantee of success. And horsemen, already feeling besieged by proponents of medication reform, have clashed with regulators over the breadth of medications prohibited under some out-of-competition programs and the expanding reach of some racing commissions.

Racing playing catch-up
Out-of-competition testing is already the most prevalent method of sampling in most other sports. The United States Anti-Doping Agency, which administers testing of U.S. Olympic athletes, conducts approximately 70 percent of its tests on out-of-competition samples, according to the organization. The USADA requires athletes to provide phone numbers and detailed daily itineraries so that sample collectors can locate the athletes at a moment’s notice.

The increasing reliance on out-of-competition testing is based on the use by athletes of substances that increase endurance, build muscle mass, or otherwise assist in training. That trend itself is partly a consequence of the development of tests in the past two decades that are exquisitely sensitive and very good at catching the types of drugs that have short-acting effects, almost assuring that an athlete using an illicit performance-enhancing drug on the day of an event will be caught.

Supporters of the expansion of out-of-competition testing in racing point to those trends in the larger sports world to argue that racing must focus its efforts in the same areas or risk falling behind in the race to keep pace with the designers of performance-enhancing drugs for horses.

“If you look at any other sport, they grapple with this stuff every day,” said Jim Gagliano, the president of the Jockey Club. “With the advancements in science and medicine, it’s always going to be a problem.”

The seven states that allow for out-of-competition testing – California, Indiana, Kentucky, Maine, New Jersey, New Mexico, and New York – typically outlaw several large classes of drugs. The classes include blood-doping drugs such as erythropoietin (EPO) and darbepoetin; gene-doping drugs, a catch-all category of substances that theoretically alter the way genes are expressed; and peptides and protein-based drugs, another nebulous category written in a way to include toxins, venoms, and drugs such as myoinositol trispyrophosphate, which is known variously as ITPP or ITTP. Some states also specifically ban anabolic steroids that are not allowed to be administered in therapeutic doses and the beta-2 agonists that have “repartitioning effects,” a term that refers to the ability of the drug to build mass.

“Those are the classes of drugs we know about,” said Dr. Rick Sams, the director of the HFL Sports Science Laboratory in Lexington and a consultant on many of the racing industry’s current drug-reform efforts. “Plus the classes where we think the new drugs are going to come from.”

Penalties for positive findings are typically harsh, reflecting that most of the substances banned under out-of-competition rules are pure performance-enhancing substances. Most states require a minimum 10-year suspension for a single finding of a blood-doping drug, for instance, absent mitigating circumstances.

Disputing the rules
New York’s regulations went into effect Jan. 1, 2010, but it took 2 1/2 years before the state pulled a sample from a Thoroughbred horse, and 3 1/2 years before a judge lifted an injunction preventing the state from pulling and testing samples from Standardbred horses.

The delays occurred because of dissatisfaction by horsemen on the number of drugs that New York’s rules would consider a violation in out-of-competition samples and an expansive definition of the commission’s jurisdiction that enabled regulators to target any horse stabled within 100 miles of a racetrack – even if the horse was stabled in another state or country (Canada is within 100 miles of several upstate New York tracks). A group of Standardbred owners and trainers filed suit challenging the rules, while Thoroughbred horsemen chose to work with the state to rewrite the rules to address their concerns.

Alan Foreman, an attorney who is the chairman of the National Thoroughbred Horsemen’s Association, led the negotiations with the racing commission. According to Foreman, the horsemen’s primary objection was language that made any finding of a “peptide or protein-based drug” a positive, even if there are substances that fall under the definition that have therapeutic uses in horses and would have no effect on a horse’s performance in a race.

Rick Goodell, the assistant counsel for the New York State Gaming Commission, said the commission agreed to add language to the rule clarifying that the peptide and protein-based ban applied only to those substances that could provide a long-term “analgesic effect” – the ability to deaden pain – and those drugs that “increase ability beyond natural limits.”

In addition, the commission agreed to allow trainers to administer substances prohibited under the regulation as long as state officials were notified and approved the treatment. In such cases, the horse would be required to go on the vet’s list and would not be allowed off the list until it could be demonstrated that the substance had entirely cleared the horse’s system and was no longer having any physiological effect.

Foreman said that the dispute in New York should sound a cautionary note, especially as many prominent national organizations begin to weigh in for the first time on what drugs should be prohibited in out-of-competition settings.

“These out-of-competition rules are going to be very problematic for horsemen unless [trainers] know what [regulators] are looking for,” Foreman said. “We drew the line at blood-doping and gene-doping agents [in New York], because obviously they have no business being in a horse whatsoever. But when you go beyond that it gets to be a sticky wicket. There are drugs that have legitimate uses in therapeutic medicine, and those are not drugs that trainers should be penalized for.”

While many states hew to similar definitions for banned drugs in out-of-competition samples, New Mexico’s rules cast a wide net, prohibiting any Class 1, Class 2, or Class 3 medication. While Class 1 medications, by definition, have “no generally accepted medical use in a horse” and a high potential to influence performance, Class 2 and Class 3 medications include some drugs that have legitimate therapeutic purposes, introducing the possibility that penalties will be administered to a trainer who was merely attempting to treat a sick or injured horse.

Acepromazine, a sedative that is commonly administered to calm horses down when being treated or diagnosed for an injury or other malady, is a Class 3 medication, for example. Under model rules endorsed by nearly every racing organization, acepromazine is allowed to be administered as close as 48 hours prior to a race, yet New Mexico’s rules would call the drug a positive when found in an out-of-competition sample two weeks, or even two months, before a race.

“That’s a little more liberal than we would probably like,” said Dr. Dionne Benson, the executive director of the Racing Medication and Testing Consortium, a group funded by a wide cross-section of the industry that makes recommendations on drug policies. “I think this is something we are really going to have to talk about as we push more states, because for some people, the New Mexico rule is the model rule. We may look more at those drugs that have no business being in a horse. That may be the more appropriate tactic.”

While New York’s Thoroughbred horsemen were generally unconcerned about the state’s rules regarding the extent of the commission’s jurisdiction to collect samples, the suit filed by the state’s Standardbred horsemen said the “selection of a 100-mile radius is, by itself, arbitrary, capricious, and without any meaningful basis.” The suit also said that by sending personnel to private farms that may be owned by non-licensed personnel, the commission was also violating a Constitutional prohibition against unreasonable searches and potentially infringing on private property rights.

A New York Supreme Court upheld those provisions of the rules in July of this year, ruling the non-licensed owners of farms “have a reduced expectation of privacy due to the fact that horse racing is a highly regulated industry.” The court further ruled that the 100-mile radius was “rational and reasonable.”

Although the question of the reach of the New York commission seems to have been settled, the issue of jurisdiction is expected to be contentious in other states, especially as those states reach farther and farther away from the track to obtain samples.

Jim Gagliano, the president of the Jockey Club – whose list of members is largely made up of influential owner-breeders – said the organization supports the targeting of any horse at a racetrack or licensed training facility. But he was noncommittal when asked if the organization would support rules allowing racing commission personnel to show up at private farms, many of which have facilities to train horses up to races.

“There’s a number of different tactics that commissions could use to gain access to competitors,” Gagliano said. “A lot of these details need to be worked out.”

The statement appears to jibe with the Jockey Club’s policy on a proposal for a national veterinary database on medical records of horses. At the Round Table in mid-August, the organization said that it would support the mandatory collection of the medical records for every horse that has made at least one recorded work at a racetrack or training center. In other words, it supports the collection of records for any treatments, procedures, or drugs a horse receives after the horse leaves the farm.

Joe Gorajec, the executive director of the Indiana Horse Racing Commission, said 60 percent of the out-of-competition samples pulled in Indiana since 2007 have come from horses located at the state’s two tracks. The other 40 percent are collected from training centers and private farms – including the samples from four Quarter Horses in 2012 that earned the notorious distinction of becoming the only out-of-competition samples in Indiana to test positive for a banned drug. The drug, zilpaterol, is a beta-2 agonist, a mass-building medication developed to fatten cattle.

The trainer who was responsible for three of the Quarter Horse positives was suspended for 3 1/2 years. The other was suspended for 18 months. Those are the two longest suspensions ever given out in any U.S. jurisdiction for zilpaterol positives.

“Any successful out-of-competition testing program has to have the ability to go off the racetrack premises,” Gorajec said, adding that commission personnel have also pulled samples from horses known to be pointing to Indiana races even though they were located in Illinois. “If you don’t have that, you basically allow someone to stable and train where we can’t go, and that allows them to cheat with impunity.”

Dan Metzger, the president of the Thoroughbred Owners and Breeders Association, said that he does not believe his members would object to random sampling at any location where horses are stabled.

“It’s not a right to participate, it’s a privilege,” Metzger said. “I think most people in racing will agree with that. If you want to race at Saratoga or Belmont or Keeneland or Del Mar or Delaware, there are certain rules you have to live under. It’s not an issue with other sports, so it shouldn’t be a problem in ours.”

In addition to jurisdictional concerns, pulling samples from places other than the racetrack can be more labor-intensive and expensive, though not prohibitively so, officials said. Frank Zanzuccki, the New Jersey commission head, said the majority of the Thoroughbred samples pulled by his investigators have come from horses stabled at Monmouth Park.

“We have a limited number of staff, and so we usually try to get 40 or 50 horses when we go out, usually from one barn with two trainers, one on either side, so we can maximize our resources,” Zanzuccki said. “It’s a lot easier than jumping from barn-to-barn or farm-to-farm.”

Dr. Mary Scollay, the KHRC equine medical director, said the state wants to do more out-of-competition testing, but money is tight, and labor is short and over-worked.

“It is very labor intensive, and it’s very expensive, and so it has to be done in a strategic manner, where you are pulling samples from horses that have the highest potential to return a positive, to maximize the return on your investment,” Scollay said.

The methods to testing
Other than Indiana, New Jersey appears to be the only other state to have detected positives in out-of-competition samples, according to officials. In early 2008, shortly after New Jersey launched its program, samples from six Standardbred horses tested positive for erythropoietin, the blood doper. The trainer and the owner of the horses were suspended 13 1/2 years each. Since then, not a single sample has tested positive, despite rumors, especially persistent in the harness-racing world, of the continued widespread abuse of blood-doping drugs.

“I am surprised,” said Zanzuccki, when asked about his reaction to the lack of positives, for tests targeting both breeds. “[Out-of-competition testing] could be a deterrent. [Horsemen] could be using something we can’t detect.”

California has probably pulled more out-of-competition samples in the past five years than all other states combined. Dr. Rick Arthur, equine medical director of the California Horse Racing Board, said the board has tested approximately 5,000 to 6,000 samples since 2007. The samples have been subjected to the most sophisticated screens available at the CHRB’s drug-testing lab at U.C. Davis, considered the foremost testing laboratory in the country.

Arthur would not discuss in detail the criteria the board uses to target horses for sampling. But he did say the board would consider win rates in excess of 30 percent by one barn or a particularly strong run by a trainer as a consideration. In addition, Arthur said the board collects “intelligence” from backstretch sources, and that information can sometimes factor into a decision to send samplers to barns. Last year, Arthur said, the board simply used the list of the top 10 trainers at Santa Anita to determine which barns would be targeted, with samplers showing up at random intervals to pull blood and collect urine.

“You always find someone who will say someone is cheating,” Arthur said. “That’s just life at the racetrack. We constantly get, ‘How come you can’t stop so-and-so from winning?’ That’s not our job. We’re there to make sure people follow the rules.”

Several of the samples CHRB personnel have collected have come back “suspicious” for high levels of the markers of a blood-doping drug, Arthur said, but the suspicions were erased after further tests on the horses revealed that the markers were naturally high in the horses at question.

Kentucky has tested approximately 300 out-of-competition samples since late 2010, according to Scollay. The brunt of those tests were performed on samples taken from runners in the 2010 and 2011 Breeders’ Cups, along with samples taken from runners in the three Kentucky Derbies held since the program’s launch. Nothing.

“It’s my personal sense that blood-doping agents aren’t the predominant threat in Thoroughbred racing that people say they are,” Scollay said. “But I also think that out-of-competition testing has a strong deterrent effect, so it’s not like I would recommend backing off out-of-competition testing just because we haven’t found a positive.”

While regulators and chemists are confident they can catch blood-doping drugs, they acknowledge that racing labs do not currently have tests that can detect some of the drugs banned under out-of-competition rules that are also rumored to be in use, such as ITPP or designer formulations of protein-based drugs.

“We do well with the EPO-type drugs,” said Dr. George Maylin, the head of New York’s drug-testing lab at Cornell. “We have assays to detect those. The other drugs, we don’t have an effective screening test. To be frank, no one else in the world, including the labs testing humans, does.”

Maylin said he is in the process of developing “several” new tests, each of which will require between $100,000 and $200,000 in funding, even if the work is not successful in developing an adequate test. The RMTC’s current annual research budget is $100,000.

“In general, the industry needs to make a commitment to research,” Benson said. “There certainly isn’t a lack of real and perceived threats out there.

Still in its infancy
The biggest gap in the current out-of-competition testing efforts obviously exists between those states that have programs in place and those that don’t. Some notable racing states have no programs: Florida, Louisiana, Pennsylvania, Texas, Illinois, and others. Racetracks in some of those states – Florida, Pennsylvania, and Louisiana – receive millions of dollars in slot-machine subsidies that go directly to purses and the racetracks’ parent companies.
Earlier this year, a national group that represents all of the U.S.’s state racing commissions endorsed a set of model rules on medications and drug-testing. The model rules, which are currently being considered in approximately a dozen states, do not include a section on out-of-competition testing.

Foreman, the THA chairman, is leading the effort to get the uniform rules adopted in the mid-Atlantic, where he is based. He said that rules on out-of-competition testing were not included because it was not seen as a pressing issue or priority when negotiations began on the rules several years ago. Parties to the negotiations included at least one representative from every major racing organization and constituency in the sport.

“This is something that is in its infancy right now,” Foreman said. “Really, people only started talking about this in the last couple of months.”

Still, some states in the mid-Atlantic are considering adopting protocols for out-of-competition testing in the near future, perhaps in line with the effort to adopt the model rules. J. Mike Hopkins, the executive director of the Maryland Horse Racing Commission, said that the commission intends to begin collecting out-of-competition samples sometime in 2014, but he said the board will still need to work out how the rules would be enforced and what drugs should be covered by the regulations.

“I can’t say what amount of money that it would cost, but I wouldn’t think it would be a problem,” Hopkins said. “It’s more the mechanics of how it would all work. Plus under our rules right now if a horse is not entered to race it’s no foul. So that would need to be changed. From what I understand, the whole goal is catching the blood-doping and gene-doping drugs, and that’s another animal entirely. That’s the kind of stuff that is prohibited anyway.”

The $500,000 Jockey Club grant to the RMTC will likely go toward collecting and testing samples from horses entered in graded stakes races in states that do not currently conduct the tests or that have limited funds to perform sampling and testing, according to Jockey Club officials. In those cases, nomination forms to the stakes will serve to identify the horses, and a condition of the nomination will explicitly require the owner to agree to produce the horse for sampling if asked.

If those samples do not produce positive tests either, that will not mean that the sport has wasted its time or money, officials said.

“If people know that we are out there taking samples and testing them, that can be a very powerful way to stop a lot of people from trying things,” Dr. Benson said. “The most successful drug-testing program we can have is one where we do a great job of testing and we still don’t find anyone.”

Restricted drugs

Substances that are typically banned under out-of-competition testing rules:

Blood-doping agents: Category refers to erythropoietin, darbepoetin, or any other substance designed to spur the production of oxygen-carrying red-blood cells

Gene-doping agents: The World Anti-Doping Agency defines as “the non-therapeutic use of cells, genes, genetic elements, or of the modulation of gene expression, having the capacity to improve athletic performance,” though New York’s statute adds “or produce analgesia.” It is unknown if any gene-doping drugs have been produced for horses.

Other peptide or protein-based substances: This is a catch-all category for biological drugs of unknown provenance or effect. Myoinositol trispyrohosphate (ITPP or ITTP) is one, along with toxins and venoms, such as cone-snail venom or dermorphin (which is already named in many regulations).

Repartitioning agents: This category includes drugs that have anabolic steroid-like effects, such as the beta-2 agonists. Zilpaterol is one; so is clenbuterol, but clenbuterol is regulated under separate rules.