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Andrew Turro Quoted in Paulick Report, "‘The Optics Are Horrible’: March Of Out-Of-Competition Testing Is A Slow One"

Sep 7, 2016Equine & Racing Law

One of the familiar themes at the Jockey Club's 64th annual Round Table Conference held Aug. 14 in Saratoga Springs, N.Y. was the usefulness of an out-of-competition drug testing program (OOCT) in horse racing. Jeff Novitzky, vice president of athlete health and performance for Ultimate Fighting Championship, pointed out the importance of OOCT to anti-doping efforts at the UFC and for Olympic athletes. One thing that wasn't presented was a comparison of how horse racing is doing with OOCT.

Out-of-competition testing was once heralded as the future of horse racing regulation — and critical to making and keeping the sport cleaner. Ten years in, it isn't catching on with much urgency.

Ontario was the first North American jurisdiction to launch an out-of-competition program in 2006, around the time tests for the blood-doping agent EPO in horses first became definitive. New Jersey and Indiana followed in 2007. According to data provided on the Racing Medication and Testing Consortium's website, just 57 percent of listed racing jurisdictions (19 of 33) in the United States currently have rules on the books permitting out-of-competition testing. Some say the actual proportion of states with the authority to conduct the testing could be even lower.

Maryland is one of the states listed as having passed rules regarding out-of-competition testing, according to RMTC, but the phrasing of state regulations does not name specific drugs that may be tested or timeframes, reading only that the state may conduct tests on a horse “entered to race.” The Maryland Racing Commission says that isn't enough to allow officials to take samples of horses for testing in any true out-of-competition sense.

“We do not have a law for out-of-competition testing,” said Mike Hopkins, the commission's executive director. “I am working on changing that through the language that has been proposed by the RMTC and is being reviewed by the ARCI.”

The Association of Racing Commissioners International model rule is much lengthier than Maryland's rule and opens testing to horses on commission grounds or under the care of a licensee:

“Any horse on the grounds at a racetrack or training center under the jurisdiction of the commission; or under the care or control of trainer or owner licensed by the commission is subject to testing for blood and/or gene doping agents without advance notice. This rule does not apply to therapeutic medications approved by the FDA for use in the horse.

(2) Horses to be tested may be selected at random, with probable cause, or as determined by the commission;

(3) The Commission Veterinarian, or any licensed veterinarian or licensed veterinary technician authorized by the commission, may at any time, take a urine, blood or hair sample from a horse for this purpose.

(4) Prohibited substances, practices and procedures are defined as:

(a) Blood doping agents including, but not limited to Erthropoietin (EPO), Darbepoetin, Oxyglobin, Hemopure, Aranesp or any substance that abnormally enhances the oxygenation of body tissues.

(b) Gene doping agents or the non-therapeutic use of genes, genetic elements, and/or cells that have the capacity to enhance athletic performance or produce analgesia.

(5) Cooperation with the Commission Veterinarian, or any licensed veterinarian or licensed veterinary technician authorized by the commission, includes:

(a) Assisting in the immediate location and identification of the horse selected

(b) for out of competition testing;

(c) Providing a stall or safe location to collect the samples;

(d) Assisting the veterinarian in properly procuring the samples;

(e) Split samples will be collected as per PMRMR-025-023-C.

(6) Out of competition samples will be sent to the official laboratory of the commission, or other laboratory as designated by the commission with reports made in accordance with the provisions of these medication rules and the penalty provisions thereof.”

Having a rule on the books (however general or specific it may be) doesn't guarantee states recognized as permitted to test are actually doing so. According to data provided by the Association of Racing Commissioners International, just nine states conducted out-of-competition testing in 2015, with one jurisdiction (California) accounting for nearly half of the tests performed on Thoroughbreds.

In 2015, the number of tests administered in participating states ranged from three to 1,633, with most states performing less than 300 on Thoroughbreds. By contrast, about 65 percent of testing conducted on human athletes by the U.S. Anti-Doping Agency thus far in 2016 was on out-of-competition samples.

It's important to note the types of drugs regulators are looking for in horse racing and human sports are very different. The World Anti-Doping Agency (WADA) is regulating a wider range of substances, including many therapeutics, while the goal for horse racing is to detect performance enhancers that would likely not show in a race-day sample. Substances like EPO deliver their desired effect of boosting red blood cell counts and leave the equine body quickly, which makes them hard to find.

Dr. Richard Sams, laboratory director for LGC Labs in Lexington, Ky., said tests are still being developed for some of the substances in the RCI's model rule, but the phrasing of the rule allows regulators to begin looking for them when those tests are complete.

“Generally speaking, OOCTs represent about 1 percent of all horse race testing,” said Ed Martin, president of RCI. “This differs from human sport where there is an entirely different regulatory scheme — one that regulates therapeutic medications in training and competition. Regulating treatments in training necessitates a greater emphasis on OOCT. Human athletes can obtain a ‘therapeutic use exemption' that allows them to train and compete while taking otherwise prohibited substances if they can prove a medical need.

“Racing, with limited exception, does not regulate therapeutics in training but prohibits all PEDs in competition. Although you might argue that the Lasix policy is a therapeutic use exemption — no others exist and there is no mechanism for trainers or vets to get permission to compete with a PED as there is in the WADA code,” added Martin.

Although it was once reported that 100 percent of out-of-competition tests were coming back negative, results from 2015 indicate the testing has effectively identified illegal drug use. According to data collected by ARCI, 3,803 out-of-competition tests were performed last year (including those performed on Standardbreds). There were 45 positives; 44 were cobalt overages in Arkansas (out of 52 total samples tested there) and one was for Levamisole in Oklahoma. The previous year, 2,216 tests yielded seven positives. Cobalt is believed to mimic the effects of EPO in humans (although there is some debate about whether it accomplishes the same in horses). Levamisole is an anti-protozoal sometimes used to treat Equine Protozoal Myeloencephalitis (EPM) but can break down into aminorex, which is a Class B amphetamine-like substance.

In Arkansas, horses with cobalt overages were placed on the veterinarian's list until they tested below a certain threshold for the mineral. Trainers of those horses did not receive sanctions. Indeed, there is some confusion among Arkansas officials as to how many overages actually occurred; RCI data indicated Arkansas had performed 52 tests in 2015 with 44 overages, while a steward there told the Paulick Report the number of tests performed was 293 with 8 overages. This year, the steward reported, there have been no cobalt overages in OOCT.

“The primary function of drug testing is to act as a deterrent to prohibited activity, especially with drugs where post-race testing is inadequate,” said Dr. Rick Arthur, equine medical director for the California Horse Racing Board. “When we started OOCT testing for EPO, a veterinarian left California and subsequently was sanctioned back east over EPO issues.”

Arthur also said the testing provides commissions with intelligence on how horsemen are using (or misusing) drugs.

“From OOCT testing, we learned every Quarter Horse in major races was on clenbuterol and in the general Thoroughbred population, 58 percent of horses were on clenbuterol with some trainers at 0 percent and other trainers at 100 percent,” said Arthur. “Another example is using OOCT samples to survey for specific drug use such as we did with growth hormone.”

So why aren't the jurisdictions with out-of-competition testing regulations actually doing it?

The obvious answer is the same one that prevents states from expanding post-race testing programs or updating to newer testing methods: money.

The Jockey Club has set aside $250,000 in grants to help defray the costs to states and racetracks, but the program is only applicable to OOCT costs for nominees to graded stakes races. West Virginia announced plans to take advantage of it this year.

Legal challenges also complicated matters in New York, where horsemen said the rule's original language was too vague and allowed commission representatives to enter private farms or training grounds to take a sample. Harness horsemen brought suit against the state's Racing and Wagering Board soon after its rule was enacted in 2009. The civil litigation has since fizzled and while attorney Andrew Turro said the new language is better, he's still waiting and watching, suspicious there will be need to head back to court again.

“We're not against out-of-competition testing,” said Turro. “Every story's got two sides, and all we're looking for is due process and a level playing field. None of my clients want other people who are racing to have an unfair advantage using drugs. They just want us to go about it in a fair way.”

Mike Pieczonka, general counsel for the Illinois Racing Board, declined to say how much out-of-competition testing Illinois is doing (it did none in 2014 or 2015, according to the RCI data), but did reference the legal battle in New York as a source of concern.

“We do not typically discuss our investigation techniques because when people start to learn about how we do investigations, they can skirt our policies and procedures,” said Pieczonka. “IRB Rules allow for out-of-competition testing, and the IRB wishes it could do more testing across the board, but there are budget constraints, as with many other racing jurisdictions. There are also always legal issues with on-track vs off-track testing that need to be considered. The IRB is committed to increasing its rights to help ensure the safety and security of all racing participants, including equine athletes and the betting public.”

Regulators in states spending the cash to perform the tests say it's a basic element of racing integrity to them, and excuses to delay testing are just that. Those excuses are gaining attention within regulatory groups, however: sources tell the Paulick Report new model rule language, based on WADA's rule, has reportedly been stalled and heavily edited by horsemen's representatives who believe it is too broad.

“Once EPO was detectable in equine blood, we began out of competition testing almost immediately,” said Joe Gorajec, former executive director of the Indiana Horse Racing Commission. “For us in Indiana it was a ‘no brainer.' We could not claim that we were regulating to the highest of standards and with the greatest level of integrity if we turned a blind eye to blood doping.”

What does Gorajec guess is stopping states from testing?

“It's likely either lack of funding or lack of will – or a combination of both,” he said. “Without OOCT, horsemen can cheat with impunity. This is a disservice to the sport and the betting public.

“The optics are horrible.”