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Andrew Turro Quoted in Racing Daily Form, "Racing Symposium: Out-of-Competition Testing Faces Hurdles"

Dec 12, 2013Equine & Racing Law

Media Source: Daily Racing Form


Out-of-competition testing will likely become more prevalent in U.S. horse racing jurisdictions as the next frontier in combating illegal drug use, but efforts to implement the programs continue to be haunted by issues involving privacy, jurisdiction, and the breadth of drugs that can be considered a positive, racing officials said Wednesday during the second day of the University of Arizona Symposium on Racing and Gaming.

Out-of-competition testing programs have been implemented in at least seven racing states over the past five years, including California, New York, and Kentucky, and regulators have generally been satisfied with the results of the programs. Although approximately 10,000 out-of-competition tests have failed to yield a single positive test in a Thoroughbred horse under the programs, supporters of the programs have said that they act as a deterrent to horsemen attempting to use illegal medications that can have effects long after they have cleared a horse’s system.

However, the programs also have faced pushback from some horsemen’s groups, most notably in New York. The groups have said that they support out-of-competition testing programs, but they have raised issues with the scope of the some of the existing regulations allowing for the testing, including complaints that some statutes have granted regulators powers that are so broad that they violate state constitutional protections on privacy and warrantless searches.

Andrew Turro, the lead attorney for New York’s Standardbred horsemen in their challenge of the regulation, said on a panel Wednesday that the horsemen supported out-of-competition testing. But the horsemen were concerned that the out-of-competition testing statute was so broad that it invited regulators with “ulterior motives” to single out horsemen for scrutiny.

“Neither I nor anyone else question the wisdom of drug testing or out-of-competition testing,” Turro said. But, “effectively, this rule allows New York to go anywhere in the world to test a horse” without “a factual basis.”

The Standardbred horsemen filed suit challenging provisions of New York’s out-of-competition testing rules shortly after the rule took effect early in 2010. The New York Supreme Court sided with the horsemen on a number of their challenges in 2013, but the legal process is continuing in the New York Court of Appeals.

New York’s Thoroughbred horsemen also had problems with the new rule, but in contrast to the Standardbred horsemen, they worked with the New York racing commission to iron out their problems with the rule. As a result, New York regulators began taking out-of-competition samples from Thoroughbred horses in 2012 under an amended rule that limited some of the commission’s power.

Steven Lehman, chief executive of the Ontario Racing Commission, said that the Canadian province has avoided concerns about breaches of privacy for its out-of-competition testing program by putting in place an “intelligence officer” that collects information about potential drug abuse. Trainers are added to the list by the intelligence operation for “reasonable cause,” which is used to justify the testing of out-of-competition samples collected from the trainer’s horses.

In 2012, the ORC, which supervises 16 tracks in the province, put 37 trainers on the list and tested 400 out-of-competition samples. The agency is on track to test horses from about two dozen trainers this year, Lehman said.

The benefit of maintaining the list and testing the samples is to “stop people from doing stupid things,” Lehman said, referencing experimentation by trainers with compounded substances marketed by their manufacturers as powerful performance-enhancing drugs. Most of those claims, according to drug-testing officials, are fraudulent, attached to substances that have no efficacy. (They also won’t return a positive, since they don’t include any prohibited substances, which, paradoxically, leads trainers to think they are getting away with using the substances, even though they have no effect.)

Under the out-of-competition rules in place in the states where the practice is conducted, blood-doping and gene-doping drugs are prohibited, along with drugs in a nebulous category: proteins or peptide-based drugs, usually with the caveat that the substances can be used for performance-enhancing effects, since some drugs in the class can be used for legitimate therapeutic purposes. Penalties for a positive finding typically carry a 10-year penalty or revocation of a trainer’s license.

Alan Foreman, chairman of the National Thoroughbred Horsemen’s Association, said that racing’s ability to detect those drugs in out-of-competition settings will likely determine whether the sport is successful in battling cheaters in the future. Because of that, Foreman said, the racing industry needs to re-focus from testing for illegal levels of allowable therapeutic medications to spending more time and money trying to develop the tests for the sophisticated designer drugs that will be part of the pharmacopeia of the next generation of cheater.

“We know there are these emerging medications, these things like peptide venoms with powerful analgesic [pain-killing] effects,” Foreman said. “It’s going to be a lot more important to find those than testing for the 24 drugs on the therapeutic list.”