05/09/2013 11:57AM

RCI's proposed medication penalties debated


Four days before the Kentucky Derby, three federal legislators announced plans to introduce a bill requiring the racing industry to fund an effort to develop national rules for drugs and drug-testing. It was the third straight year that a bill seeking federal control over the racing industry was announced, even though the two previous efforts had gone nowhere.

Along with the attention that a legislator derives from a Derby week announcement, the impetus behind the introduction of all three bills has been the lack of uniform rules governing medication use and drug-testing in all 38 U.S. racing jurisdictions. In 2011 and 2012, racing officials could hardly defend the industry’s record. Rule books among the states remained a patchwork quilt, with little progress on a national effort despite significant behind-the-scenes work.

In 2013, the landscape is beginning to look dramatically different.

Nine states – eight in the Northeast and the Mid-Atlantic, plus New Mexico – have already pledged to adopt a proposed set of uniform medication rules by Jan. 1, 2014, with other states expected to join the pledge later this year. And now, organizations that have been pressing the effort are also hoping to wed the uniform medication rules to a new penalty schedule for medication violations that would add significant sanctions for trainers with multiple violations for even therapeutic drugs.

The new penalty schedule, which was devised by a committee set up two years ago in the wake of an intense industry debate over the use of the raceday drug furosemide, was distributed to industry groups two weeks ago after being introduced during a late-April conference of the Association of Racing Commissioners International. The goal is to get feedback on the proposal in time to press for adoption of the new scheme at a meeting of the RCI’s model rules committee in late July in Saratoga, with the implementation of the new penalty requirements on Jan. 1, 2014.

Regulators and industry organizations have been talking about the adoption of uniform rules and penalties for decades. And now the industry thinks it can get the whole shebang done in seven months?

“I don’t think it’s too ambitious a schedule,” said Alan Foreman, an attorney who presented the new penalty scheme to the RCI on behalf of the committee that devised it. “It’s a very simple proposal.”

Though the adoption of new medication rules and penalties enjoys conceptual support from a wide range of organizations, this year’s effort, like those before it, could get bogged down in a debate over the specifics of the new proposal.

“It’s fair to say conceptually we think there ought to be a uniform penalty system,” said Phil Hanrahan, the chief executive of the National Horsemen’s Benevolent and Protective Association, which represents approximately 30 state horsemen’s affiliates across the United States. “But the devil is in the details.”

Under the new penalty scheme, trainers would be assessed points for medication violations, with the amount of points linked to the severity of the violation, in much the same way points are applied to driver’s licenses. Once a trainer reaches a certain threshold, additional sanctions, from an additional 30-day suspension to a year on the sidelines, would be automatically levied.

The lowest threshold would be three points, which could be earned by a trainer with as little as one clenbuterol overage and one phenylbutazone overage, two of the most common violations in racing, if the violations occurred within one year of each other. The three-point threshold would trigger an automatic 30-day suspension, over and above any other penalties that are assessed for the violations. If a trainer earned 11 points, which could be earned by any two violations of a serious drug during the trainer’s lifetime, the schedule calls for an additional one-year suspension.

Already, some critics of racing contend those penalties are not harsh enough. On the other side, many trainers are expected to take issue with the sanctions for being too harsh, especially on the low end of the scale, where trainers could rack up 30- to 60-day suspensions for a close-together run of overages for popular therapeutic medications.

Without saying whether the national horsemen’s association has an issue with the current schedule either way, Hanrahan said discussions among ­affiliates this summer would center on the points system and the thresholds that triggered the additional sanctions.

“What is the correct number of points you get, and what is the correct threshold?” Hanrahan said. “Should it take three points to get a 30-day penalty, or should it take five points to get a 30-day penalty? And does that make sense in every instance?”

Hanrahan also said some members have asked whether trainers who start a large number of horses each year should receive the same penalties as a trainer who only starts a few horses a month. That debate centers on whether a trainer with hundreds of starts a year should be treated more leniently on therapeutic violations because there are far more opportunities to make a mistake with a therapeutic medication in large, sometimes far-flung barns.

Under the system, points can be expunged from a trainer’s record for therapeutic medications within a year of the points being added, at least for the most innocuous drugs, whereas points for serious performance-enhancing drugs will never be taken off a trainer’s record. To Foreman, that element of the penalty schedule grants trainers a certain amount of leeway to make mistakes – even while sharply ratcheting up the sanctions for those errors – while acting as a serious deterrent for those who would experiment with drugs that have no business in horse racing.

“If you have a Class 1 or a Class 2 [violation], you are going to be on very thin ice forever,” Foreman said. “That is never going to come off your record.”

There is another significant hurdle that could jeopardize the quick adoption of a uniform penalty schedule. For the system to work, every racing jurisdiction must have access to a national database of rulings against licensees in order to keep accurate track of the points a trainer has amassed on his or her license.

Supporters say getting full buy-in to a national database is simply a matter of logistics. The Jockey Club, which has worked on the committee to devise the new penalty schedule, currently maintains a database of rulings from most major racing jurisdictions against licensees, but the database is for informational purposes only, and the reports are not updated in real time. Full participation and real-time updates will be necessary if regulators are going to assess accurately whether a trainer should receive additional sanctions for a medication violation.

At least getting cooperation on the development of a national database does not face the hurdles of the 1990s, when a number of state racing commissions split from the Association of Racing Commissioners International to form their own group. The rift was mended in 2005, when the rogue commissions agreed to merge with the RCI, and since then, the association’s executive director, Ed Martin, has worked aggressively to get member jurisdictions to act as one.

Martin said Tuesday that the penalty schedule will need to be reviewed by racing commission lawyers for nuances that could complicate enforcement of additional sanctions on licensees. But he said he was confident the RCI can review a working version of the rule by the late July meeting, and he is anticipating that resistance from rank-and-file trainers will be minimal.

“You have to remember, we’re dealing with a very small number of people here who will be affected by these rules,” Martin said. “The overwhelming majority of trainers don’t have multiple violations.”