Updated on 08/09/2015 9:35AM

USADA under the microscope


SARATOGA SPRINGS, N.Y. – Last year on Aug. 18 in an exhibit room at the National Museum of Racing and Hall of Fame in Saratoga Springs, N.Y., Travis Tygart, the chief executive of the U.S. Anti-Doping Agency, appeared before a roomful of people gathered by the Water Hay Oats Alliance to give a presentation about a possible role in Thoroughbred racing for his company, known as USADA. Near the end of the presentation, and just after listening to complaints from audience members about the need for racing to adopt a new structure to combat what some at the meeting alleged to be widespread doping, Tygart told them, “You’re on the side of the angels here.”

A year has passed since then, and the effort to align the “angels” of the sport is in full swing. The Jockey Club and its supporters have rewritten federal legislation that would appoint USADA as the overseer of the sport’s medication policies and drug testing, brought two congressmen on board as sponsors, and put together a lobbying group to press for its adoption. On Sunday, the chairman of USADA, the gold-medal athlete and anti-doping crusader Edwin Moses, will give the keynote address at The Jockey Club’s Round Table Conference on Matters Pertaining to Racing, three years after Tygart was first introduced to many of the sport’s most influential leaders as the keynote speaker at the 2012 conference.

To supporters, the appointment of USADA as the sport’s drug czar would promptly solve a problem that has frustrated the industry for decades – a lack of one set of uniform rules to govern medication policies and drug penalties in all 38 U.S. racing jurisdictions. Under the bill, USADA would control a federally created governing board that would set medication policies for the entire U.S. In turn, USADA would ensure that those policies are enforced by monitoring the drug-control programs of state racing commissions while also directing a national Thoroughbred racing drug-testing program.

To make sure states fall in line, the bill gives USADA a mighty cudgel – any state that does not comply with the policies will lose the protection of the federal Interstate Horseracing Act, which gives racetracks the right to accept wagers across state lines. Bets that are protected by the IHA, including Internet and mobile bets, account for 90 percent of the industry’s betting revenue, according to racing officials.

Since Tygart’s 2012 Round Table appearance, he has made several presentations to industry groups, including that 2014 presentation to WHOA, a group of horsemen who believe that the industry’s current medication policies have exacted a crushing toll on the sport’s popularity while tilting the playing field toward cheaters. Inside the lobbying group built by The Jockey Club – a coalition that includes WHOA, the Breeders’ Cup, a Kentucky owners and breeders organization, and the Humane Society and its affiliated veterinary group – people speak with reverence about Tygart, USADA, and the company’s mission.

Outside that coalition, however, little is known about USADA, according to interviews with racing officials from a broad spectrum of racing organizations.

“I know [USADA is] funded mostly by the federal government, but that’s about it,” said one racetrack official, who said The Jockey Club or USADA had not yet approached racetracks about a formal presentation.

In part, the ignorance is willful. Racetracks have not looked closely at USADA because most are dead set against using the Interstate Horseracing Act as an enforcement mechanism to ensure uniformity among states on medication rules. The same applies to most rank-and-file horsemen’s organizations, which oppose the bill because they see it as a vehicle to rid the sport of the controversial race-day use of the regulated anti-bleeding medication furosemide. And many state racing commissions see the installment of any federal governing body, whether USADA or another entity, as a threat to their existence and authority, among a litany of other criticisms of the effort.

Olympic roots

The history of USADA begins in 2000, when it was formed as the result of a recommendation of the U.S. Olympic Committee, a federally chartered company administering the U.S. Olympic program. At the time, according to the speech Tygart gave at the 2012 Round Table, the popularity of the Olympics was reeling from widespread suspicion of some countries’ training programs due to a series of doping scandals, including some involving U.S. athletes. To combat the drop in popularity, national Olympic organizations began discussing ways to restore credibility to the event.

The result of that effort was the formation of the World Anti-Doping Association, an international governing body that would devise medication and drug-testing policies for Olympic countries. Under the adopted structure, a country would have to utilize an organization to enforce the WADA policy within its borders in order for its athletes to participate in the Olympics. In the U.S., that fell to USADA. The agency was among the first “signatories” to the WADA policy in 2004, when the code was first implemented worldwide.

As the WADA signatory, USADA collects samples from U.S. athletes participating in Olympic programs or qualifying events, under rules it devises and enforces so that the sampling procedures comply with the WADA code. It contracts with WADA-accredited labs to test samples for both regulated and illegal medications, and it directs research dollars toward the effort to identify new, in-circulation drugs and develop tests designed to detect the substances (those research efforts have been funded through a separate company, the Partnership for Clean Competition, since 2008). It also conducts investigations into potential violations and determines penalties for infractions, within WADA guidelines.

USADA did not respond to a list of detailed questions e-mailed to the organization this week, saying Tygart was unavailable. A USADA official said Tygart was the only official who could answer the questions.

In the last three years, USADA’s budget has hovered around $14 million a year, according to the nonprofit company’s tax returns. The majority of its funding is provided by a federal grant of approximately $9 million a year, while the remainder is provided by a grant of approximately $5 million from the U.S. Olympic Committee, another nonprofit. The U.S. Olympic Committee had revenue of $280 million in 2014, according to its financial statements, with two-thirds of that figure coming from sponsorship and broadcast rights, which are technically the property of the U.S. government.

According to USADA’s latest tax return, Tygart received compensation of approximately $400,000 in 2013. The two other highest-paid executives at the company, the chief science officer and chief operating officer, had compensation of $251,000 and $232,000 that year.

Funding issue

Although it is impossible to say with any certainty what The Jockey Club’s bill would add to USADA’s budget, state racing commissions spent approximately $30 million last year on drug testing and enforcement, according to the Association of Racing Commissioners International, or more than double USADA’s current budget. The bill would assess starters’ fees on horses to raise the funding for USADA’s work, but that funding mechanism is not detailed in the bill.

“Each state racing commission shall determine, subject to the applicable laws and regulations of the state, the method by which the requisite amount shall be allocated, assessed, and collected, provided that in no event shall the funds be obtained by means of an increase in the takeout,” the bill states. (Though the last provision sounds like a protection for gamblers, it is not absolute since racetracks that are assessed fees on their operations could separately raise the takeout to make up for the lost revenue.)

USADA’s relationship with WADA in the regulation of Olympic athletes can be used as a foundation to describe how the top-down structure imposed by the bill would work in racing. If the bill were to pass, USADA would be U.S. racing’s overall governing body, akin to the role played by WADA on the international Olympic stage. The individual states in the U.S. would be subservient to USADA’s dictates, just as the national enforcement bodies in individual countries, like USADA, are subservient to the WADA Olympic code.

Supporters of The Jockey Club’s bill contend that this structure is the only way the industry could achieve true uniformity, despite significant progress in the last 10 years by a consortium of racing groups to push states to adopt a set of uniform regulations. Those regulations have been painstakingly devised by the Racing Medication and Testing Consortium, which was formed in 2002 by a broad cross section of racing organizations representing every faction in the industry, as a way to finally make progress on an issue that had stymied all previous efforts for reform. In fact, the RMTC currently performs many of the same functions as USADA would under the bill, though it lacks any enforcement authority.

While the RMTC has its critics – there are some horsemen’s groups that have been highly critical of the science and process used to set threshold levels for some commonly used therapeutic medications – the consensus opinion of the industry, including those who support The Jockey Club’s bill, is that the RMTC has done yeoman’s work in yoking the industry to a common goal, achieving measurable results in the process.

To date, states that represent 70 percent of the U.S. handle have already adopted a section of the uniform rules (which have recently been tagged with the unfortunate acronym NUMP, for National Uniform Medication Policy) pertaining to the use of regulated and illegal medications, according to the RMTC. That list includes New York, California, Kentucky, and nearly all the states in the Mid-Atlantic and Northeast. Florida and Louisiana will join the list soon, driving the market share of the compliant states to more than 80 percent of the national handle.

But support among racing jurisdictions has not been unanimous, and in some states, progress has been slow or nonexistent. In addition, the full National Uniform Medication Policy also includes sections on penalties and lab accreditation requirements that have not been adopted in nearly as many states as the medication protocols. And, critics point out, the so-called uniformity among states is not so uniform when you apply a strict standard and delve deep into the regulations. Maryland, for example, announced that it had adopted the rules last year but failed to acknowledge publicly that it had tinkered with one provision that would continue to allow horses to be treated with the anti-bleeding medication furosemide up to three hours before a race, contrary to the four-hour rule in the uniform code.

More recently, in July, New Mexico adopted a zero-tolerance policy in both Quarter Horse and Thoroughbred racing for clenbuterol, a bronchodilator with steroid-like properties when administered regularly, in large part to comply with a request from Quarter Horse racing’s national association for a ban on the drug because of its alleged widespread abuse in their sport. That put the state out of compliance with the uniform rule for Thoroughbreds, which calls for a 15-day withdrawal time.

Other states’ efforts to adopt the uniform rules have been hampered by resistance from harness horsemen who have attempted to convince regulators or legislators that the rules should not apply to their sport. That has often led commissions or legislative bodies to consider carve-outs from the uniform rules to appease harness interests, as is currently happening in Illinois and Ohio, with those carve-outs also applying to Thoroughbred racing.

To supporters of the USADA bill, exceptions like those in Maryland and New Mexico prove the point – true uniformity is not possible without a top-down structure preventing local constituencies from exercising their influence on state rule-making bodies.

“It’s all these asterisks that make me think a state-by-state approach can’t work,” said one regulatory official who supports uniformity. “You have all these little voices when you are operating in just one state, and I don’t see how you get out of those boxes without a larger authority.”

To racetracks, though, the effort to achieve uniformity cannot come at a cost to their businesses, according to officials who work for racetracks and organizations that represent them. Though the officials said they absolutely supported uniformity, they also said that tying enforcement to the Interstate Horseracing Act could have traumatic unintended consequences if state racing commissions or horsemen tussle with USADA on medication policies, regardless of the tracks’ position on the issue.

‘Doomsday’ trigger

Although it is far-fetched and on a Doomsday tack, one hypothetical scenario that runs along the lines of racetracks’ concerns goes like this: USADA adopts a ban on the race-day use of furosemide. Kentucky’s horsemen, following a path they’ve contemplated in the past, appeal to the state attorney general to block the implementation of the rule. The attorney general, citing the hot-button topic of states’ rights, takes up the case and obtains an injunction. USADA invokes its enforcement mechanism and repeals Kentucky’s simulcast rights. And while the issue plays out in the courts, Churchill Downs holds its signature race, the Kentucky Derby, under a national betting blackout, costing the company tens of millions of dollars in betting revenue and alienating racing fans nationwide.

“That’s the third rail, the IHA,” said a racetrack official. “You’re placing that decision in a third party’s hands. The racetrack would have nothing to do with it. And yet they lose their simulcast rights.”

Concerns also have been raised in some quarters about USADA’s inexperience in regulating horse-racing medication. While doping is doping, and many performance-enhancing drugs act on the same biological pathways in both humans and horses, there is some credence to the argument.

For one, some substances legal in human athletics are illegal in horses, and vice versa. While it’s illegal to artificially boost a horse’s total carbon dioxide through the forced feeding of a solution of bicarbonates and electrolytes, nothing prevents a human athlete from attempting the same thing through natural means. Human athletes are commonly administered injections of cortisone, an anti-inflammatory, to deaden pain – sometimes in the middle of a game – while the use of any painkiller in racing is regulated and prohibited in every racing jurisdiction within 24 hours of a race.

Those challenges can, of course, be overcome with education and consultation with equine veterinarians. But racing officials involved with setting the sport’s medication policies also say that dealing with equine regulation requires a profound appreciation for the intrinsic limits of equine medicine, which deals with patients who have no way to describe their symptoms, evaluate options for treatment, or provide detailed feedback. That appreciation is often difficult to internalize among regulators who are used to human doping efforts, veterinary officials said.

“The only thing comparable [in human medicine] is pediatrics,” said one racing regulator. “These are really complex problems. Veterinarians have been struggling with this for years. You can’t just ask a horse where it hurts. There are no easy answers. If there were, we would have come up with them years ago.”

While supporters of USADA have dismissed concerns about the agency’s inexperience in equine regulation, it is worth noting that USADA does not have a role in creating the policies or directing drug testing for the equestrian events at the Olympics or its qualifying events. Instead, that role is handled by an entirely separate agency, the U.S. Equine Federation, operating under a code devised and enforced by an international equine agency, the FEI (which is an acronym for the agency’s French name). The arrangement between the two is nearly identical to that of USADA and WADA.

In short, the Olympics trusts the equine experts to regulate equestrian events, not the human ones.

USADA’s inexperience in equine regulation has been seized on by groups opposed to the bill, such as the Association of Racing Commissioners International.

“Equine welfare and medication policy should not be put in the hands of an entity with no experience with such matters and no veterinarian involvement,” Ed Martin, the executive director of the RCI, said in a statement shortly after the bill was introduced. “We strongly oppose the politicization of racing medication policies and are concerned that equine welfare policies will be trampled should this be enacted.”

Proposed board

Under The Jockey Club’s bill, the governing board devising the sport’s policies would be comprised of 11 individuals. One would be reserved for the chief executive of USADA, and five would be reserved for directors of USADA’s board. The other five would be culled from a list provided to USADA of representatives from racing organizations, giving racing and equine experts minority representation on the board. Supporters of the bill contend that the USADA majority ensures that the organization acts in the best interests of racing, even if the definition of “best interests” is often controversial.

The bill was originally sponsored by U.S. Rep. Paul Tonko, a New York Democrat who represents the district that includes Saratoga Springs. Andy Barr, a Republican from Kentucky, was brought on later, and because of protocols relating to the majority composition of the House, Barr is now the introducing sponsor, though Tonko remains firmly attached to the bill.

The congressmen introduced the bill to the House of Representatives in mid-July and have said they will seek a hearing for the bill in front of a subcommittee of the House Energy and Commerce Committee, though a hearing has not yet been scheduled.

Similar bills have been introduced in the past three years and found no traction, dying on the vine without facing a single up-or-down vote. Although this bill differs in some respects from those earlier bills, industry lobbyists have said that the current congress has no interest in a bill that would transform the regulation of racing without comprehensive support from the entire industry.

To date, racetracks, horsemen’s groups, and state racing commissions are preparing to line up against the bill, under their own separate objections. For that reason, it seems highly unlikely that the latest bill will go any further than its predecessors, not unless The Jockey Club and USADA can transmit to legislators the message that has so moved the bill’s supporters – that joining the side of the angels, no matter the uncertainty or threat of unintended consequences, is worth abandoning the devil you know.

A previous version of this article incompletely referred to the progress made in adopting the National Uniform Medication Policy among racing states. States representing 70 percent of the U.S. handle have adopted a section of the code dealing with regulated and illegal medication, but not all of those states have adopted the full policy, which also includes sections on penalties and lab accreditation.