RACING’S PROPOSED NEW LEGISLATION: SETUP FOR USADA TO FAIL?

The Jockey Club Wednesday sent out an email alerting the public that the Coalition for Horse Race Integrity put on a full-court press in its lobbying efforts in Washington D.C., pushing for the passage of the Horse Racing Integrity Act of 2019, aka Barr-Tonko.

The message continued to support, in detail, the position of TJC and CHRI.

“Dr. Sheila Lyons, DVM, founder of The American College of Veterinary Sports Medicine and Rehabilitation, an industry professional and expert witness often called upon by legislators and courts for her opinion, expressed her opinion of the Barr-Tonko Bill.”

Both are reprinted below, without commentary, in a point/counterpoint format for HorseRaceInsider readers. 

Coalition for Horse Racing Integrity Blankets Capitol Hill

Pushing Support for the Horseracing Integrity Act

Washington, DC – Members of the Coalition for Horse Racing Integrity (CHRI) blanketed Capitol Hill seeking support for the Horseracing Integrity Act of 2019 (HIA). Individual members are meeting with senators to educate them on HIA, which was recently introduced in the U.S. Senate by Sens. Kirsten Gillibrand (D-NY) and Martha McSally (R-AZ). The Senate bill is the companion legislation to the House bill, which was introduced earlier this year by Reps. Andy Barr (R-KY) and Paul Tonko (D-NY).

“The Horseracing Integrity Act is gaining momentum with the introduction of the Senate bill, and prominent members of the horse racing industry have flown in from all over the country to help educate senators and members about the need for reform,” said Shawn Smeallie, executive director of CHRI. “We’ve already had 127 members of the House co-sponsor the bill, and we’re confident that a majority of senators will get on board as well.”

The HIA would create a private, independent horse racing anti-doping authority responsible for developing and administering a nationwide anti-doping and medication control program. The program would be administered by the United States Anti-Doping Agency, the body responsible for administering anti-doping programs for human athletes, including the U.S. Olympic teams.

“The bill doesn’t create a new ‘Department of Horse Racing,’ but rather sets up an independent board with broad representation from the industry,” continued Smeallie. “We are currently operating under a patchwork quilt of state regulations with little consistency across jurisdictions. Inconsistent rules mean that the health of horses suffers, with injuries and deaths that could have been prevented.”

The new set of rules, testing procedures, and penalties would replace the current makeshift regulatory system that governs horse racing’s 38 jurisdictions. Passage of this bill will result in a substantial increase in out-of-competition testing, which will help ensure horses are free from performance-enhancing drugs during racing and training.

In a recent research paper, the group in charge of the industry’s breed registry, The Jockey Club, wrote that “improper drug use can directly lead to horse injuries and deaths. Horses aren’t human, and the only way they can tell us something is wrong is by reacting to a symptom. If that symptom is masked, the results can be devastating… we lag behind cheaters and abusers and by the time we have caught up they have moved on to the next designer substance.”

Further information:

         Coalition for Horse Racing Integrity

         U.S. House of Representatives: HRIA Co-sponsor List

         The Jockey Club’s white paper: Vision 2025 – To Prosper, Horse Racing Needs Comprehensive Reform

Analysis of the House bill titled the “Horseracing Integrity Act of 2019”

By Sheila Lyons, DVM

After careful review of the House bill titled the “Horseracing Integrity Act of 2019” I would like to offer my thoughts and opinion regarding its proposed structure for anti-doping and medication control in horseracing.  I offer this opinion based upon more than thirty years in clinical practice as an equine veterinarian in private sports medicine practice attending to racehorses and other equine athletes.  I also provided testimony at the 2012 (Senate) and 2013 (House) hearings on the Pitts/Udall horseracing integrity and safety bills.

Overview

The Horseracing Integrity Act of 2019 seems to directly accomplish only two things: 1) It will create uniform rules and regulations regarding the use of drugs in racehorses amongst the states through the creation of a national regulatory structure imposed through a newly created nonprofit entity; and, 2) It will eliminate the administration of drugs on race day.  Unfortunately, neither of these changes will directly impact the common abuse of drugs used to mask injury and or enhance performance.  This proposed legislation ultimately leaves the details of drug regulation in the control of members of the horseracing industry despite the reality that following decades of promises to regulate drugs effectively, it has failed to do so.

My greatest concerns about the proposed structure for the new regulatory agency (“Authority”) that will be created through this legislation are as follows:

1. USADA will not have independent authority to create and implement drug regulations;
2. A committee of six horseracing industry representatives will have the ability to block any change in regulation proposed by the USADA committee;
3. Only one veterinarian is included in the combined USADA and industry committees which means that discussions and decisions about drugs that will be officially deemed “permitted” and “therapeutic” medications will be made largely by individuals who have no expertise or authority on this subject and whose self-interests may be in conflict with the strict regulation of such drugs;
4. USADA can leave the Authority after five years;
5. When USADA leaves the Authority, regulation will be exclusively in the hands of industry representatives who will nominate their own successors;
6. While the health and well-being of the horse is stated as the guiding factor for all regulation, there are no animal welfare representatives on the six member industry based committee;
7. The Authority must publish and solicit industry and public comment prior to making any changes in regulation;
8. There is no stated requirement that all state veterinary board statutes will be upheld and monitored for the practice of veterinary medicine on racehorses.  The bill also fails to mandate the review of veterinary records as a means to ascertain that all veterinary services are ethical and put the health of the horse first.

Discussion

1)     USADA will not have independent authority to create and implement drug regulations

What impressed me the most about the congressional testimony by USADA Chairman Travis Tygart at the previous (2013 House) subcommittee hearing was his emphatic position that the most essential element to USADA’s effective anti-doping regulation in human sports was its insistence that it remain fully independent of any influence by the sports it regulated.  I recall hearing Mr. Tygart telling a story about a major professional sports association asking for USADA’s help to eliminate drug abuse in its players.  He said that the sport association wished to remain in control of regulation while bringing in USADA for its expertise and assistance.  Mr. Tygart explained that he told them that USADA would only become involved as anti-doping regulator if it was given autonomy with complete independence from any influence or control by the sport itself.  He said that this was the only way USADA could be successful in its efforts to clean up the sport.  I believed him.

2) A committee of six horseracing industry representatives will have the ability to block any change in regulation proposed by the USADA committee

3)  Only one veterinarian is included in the combined USADA and industry committees which means that discussions and decisions about drugs that will be officially deemed “permitted” and “therapeutic” medications will be made largely by individuals who have no expertise or authority on this subject and whose self-interests may be in conflict with the strict regulation of such drugs;

Given this persuasive testimony by Mr. Tygart, I am confused about the proposed structure for anti-doping regulation outlined in this bill.  Why would USADA agree to become involved if it was not empowered to act in a fully independent capacity?  By all means, it will be essential for any drug regulator to gather expertise from veterinarians about the appropriate and therapeutic use of drugs for treating common conditions in racehorses which necessarily includes information about expected clinical recovery and drug withdrawal times, which speaks to the issue of how close to a race is too close for appropriate therapy.  Such input by experts can and certainly should be provided in the form of non-voting advisory boards and consultants to assist USADA in its work, as it deems necessary.  But by establishing this committee of six industry representatives (only one of whom is a veterinarian) and giving each of these committee members a vote on all proposed regulation, how can USADA act as the unbiased authority it must be in order to create and enforce regulations that have a high likelihood of being opposed by those with biases due to their life-long experience in various business aspects of the industry? 

The cost of truly effective drug testing alone would put many (former) representatives of tracks, horse owners and breeders, trainers and state regulators at odds with voting to require the necessarily rigorous testing of racehorses, both in and out of competition, due to concerns that their regional tracks and associated businesses may lose income due to an increased cost to participate in the sport.  An increased cost for effective drug regulation is an inevitable consequence of responsible anti-doping enforcement.  To date, it is a cost the horseracing industry has avoided to such a degree that we have an industry with record setting death and injury rates fueled by the abuse of drugs to accommodate the racing and training of injured animals.  The majority of fatal orthopedic injuries have been shown to have pre-existing injury at the site of catastrophic breakdown and the majority of horses race with some level of injury masking drugs in their systems due to administration in the days and weeks prior to race day.

I view this bill’s proposed positioning for USADA as perhaps having (temporary) influence but wholly lacking the independent authority it needs to be successful in eliminating the influence of drugs on cheating by effecting racing performance and in the elimination of dangers to horse and rider due to drug induced injury masking which is recklessly prevalent in horseracing today. Would USADA agree to be the anti-doping regulator for the sport of cycling if professional cyclists, team sponsors, trainers, and team physicians had a controlling position in the regulation of the sport and the funding allotted for this regulation?  I doubt it.  Would we ask a football team coach what drugs he felt his players needed to be able to use in order to have a winning season and keep the players able to play in every game during a long season?  Would USADA give a controlling position to track and field coaches, athletes, associations and race sponsors in its anti-doping regulation for this sport?  We know it wouldn’t because it hasn’t.

4)     USADA can leave the Authority after five years

Perhaps this is why this bill includes the provision that USADA can leave the Authority if it wishes after five years.  I find this to be revealing of the ultimate intention of this bill, which is to ensure that the sport of horseracing remains fully controlled by the industry itself, now by federally legislated mandate.  With racehorse death rates rising this past year, racing dates shrinking, and federal prosecutions for admitted illicit drug use in racehorses that tested clean; it has become clear that the racing industry, despite its many honest owners and breeders, trainers and track owners, cannot bring its own house in order to effectively regulate the use of drugs which lies at the heart of most of its problems.  At the end of the day, this same self-regulation will be what results from this legislation.  This is the same industry that was first called before Congress in 1983 when it made the same promises to clean up the sport.  Things have only gotten worse.

Part of this control derives from the fact that the Authority’s budget to develop and implement its anti-doping regulation requires two-thirds of the Authority’s Board for approval, which means they need 8 members.  This puts the committee made of horse racing industry members in a controlling position, should they vote as a block (USADA board members are 7; horse racing industry representatives are 6).  Once USADA leaves the Authority the budget and the regulations will be fully controlled by horseracing industry representatives through the Board of six (4 members would become a two-thirds majority for control).

As anti-doping regulator, USADA also brings with it unmatched expertise with access to cutting edge science, the best and most experienced experts, testing expertise, technologies and well-honed investigative methods that are fundamental to its success.  The provision in this bill to allow USADA to leave after five years will cut off access to these priceless assets.  Anti-doping regulation relies upon science and improves through experience; it is not something that can be achieved through inexpert committees simply setting rules.  It is also important to keep in mind that effective drug regulation is not only dependent upon what the experts know today but it relies upon keeping pace with what we will be able to do tomorrow.  The cheaters often manage to keep a step ahead of the best regulators but when USADA leaves the field for anti-doping regulation of horseracing, we will fall hopelessly behind very quickly.

6)     While the health and well-being of the horse is stated as the guiding factor for all regulation, there are no animal welfare representatives on the six member industry based committee

The absence of any representation on the Authority’s Board by members who have expertise in animal welfare is concerning.  While the bill states that the health and welfare of the racehorse will be the guiding basis for its rules, there is no provision for this expertise in the Board’s make up.  In the United Kingdom, for example, experts in animal welfare are partners in the regulation of horseracing and they are given authority to conduct investigations and propose rule changes.  Their efforts have led to many reforms benefitting the health and safety of racehorses and racing industry representatives have stated that reforms influenced by animal welfare experts have helped the sport by having a direct impact on animal welfare while improving the public’s confidence in the sport. 

7)     The Authority must publish and solicit industry and public comment prior to making any changes in regulation

This bill also states that before any change in regulation can be passed, input from the industry and the public must be solicited and reviewed.  This requirement would delay and expose the proposed establishment of any new rule.  While such input may be valuable to USADA in its consideration of some proposed rule changes, this seems to be a counter-productive requirement for some actions.  USADA has stated that much of its success derives from contact with whistleblowers and other intelligence gathered from the field.  By way of example, if USADA had gathered intelligence that a new drug or method was being used to enhance performance, this requirement of giving notice to the industry it regulates that it wishes to add a substance to the prohibited substance list and begin to test for it would be a tip-off that it was onto the cheaters.  Enforcement agencies, like USADA, require some degree of confidentiality in order to catch cheaters.  Therefore, the required public comment period would seem counter-productive to effective anti-doping enforcement.

8)     There is no stated requirement that all state veterinary board statutes will be upheld and monitored for the practice of veterinary medicine on racehorses

Each State has statutes which define and control the practice of veterinary medicine through State Veterinary Boards.  Since all medications which are restricted for use by licensed veterinarians can only be prescribed, administered or dispensed by licensed veterinarians, it would be the state’s veterinary board that ultimately controls the “permitted” use of such medications.  The language in the proposed bill seems to say that on matters related to medication control this new Authority may usurp states’ control over the practice of veterinary medicine:  “This Act does not modify or supplement the Interstate Horseracing Act of 1978 or impair or restrict the operation and enforcement of State law or regulation of horseracing with respect to matters unrelated to anti-doping and medication control or for violations of State or Federal criminal law.”  Medication control is ultimately achieved through state statutes for the practice of veterinary medicine.  This bill could be interpreted to mean that the Authority has overriding say about how racehorse veterinarians may administer drugs to racehorses despite the fact that the authority that veterinarians have to administer drugs in the first place is granted exclusively by state licensing boards.

The bill also states that the Authority will create a list of “permitted” “therapeutic” medications.  The concept of “permitted” medication is what led to the reckless and nontherapeutic use of drugs at the trainer’s request or by the veterinarian’s recommendation, in order to help the horse to race better than it naturally could through injury masking or performance enhancement.  While this bill states that the health of the horse will be the over-riding goal of all medication use and that the principles of veterinary ethics will be a basis for all veterinary treatments, there is no provision that veterinary practices and veterinary records will be reviewed or monitored to be sure that drugs are strictly used in a therapeutic context and that no drug of any kind will be in any effect on the day the horse races.  There is also no language that states that the Authority will refer cases of possible violation of state veterinary board statutes to the proper state agency for review and potential action against licensee veterinarians.  This is essential for clean sport enforcement and the protection of health and safety for horses and riders.

The term “medication control” may seem to imply the prohibition of medication use in horses entered in races, but it could be interpreted as being permissive of the use of certain “therapeutic” medications in racehorses.  As I explained in my testimony before the Senate in 2012 and the House in 2013, medications are not in them of themselves therapeutic.  It is the context in which any medication is administered that deems it either therapeutic or injury-masking and/or performance enhancing.  It has been established that the industry standard of rampant misuse of “therapeutic” medication in racehorses harms horses’ health often leading to permanent and irreparable orthopedic damage and or catastrophic fatal breakdown during racing and training (See, New York State Racing and Wagering Board’s Report on a Review of Aqueduct Breakdowns, 2011-2012).  As I said in my previous testimony before congress, “Racehorse is not a diagnosis” but if there is a federally legislated mandate that certain medications are officially and in-them-of-themselves deemed “therapeutic” and “permitted”, this may change.

It has also been established that much of this medication misuse to mask injury occurs by way of administration of medication in the days and weeks leading up to a race, not just on race day.  This bill bans the administration of drugs only on race day, which is a good start, but it does not address the reality that many drugs have long lasting clinical effects.  It would be more appropriate to ban the administration of any drug or apply any other injury masking or performance enhancing method in such a way that it can remain in effect in the horse on race day.  For some drugs and methods, this would require banning their use for weeks or even months prior to race day.

For these and other reasons not stated, I cannot support this bill.  The previous 2012/2013 Pitts/Udall bill was supportable because it did not contain any of the above mentioned flaws.

Respectfully submitted by, Sheila Lyons, DVM

Founder and Director,

The American College of Veterinary Sports Medicine and Rehabilitation

Homecoming Farm, Inc.

561-889-7222

ACVSMR@comcast.net

Dr. Lyons added, “By contrast, I find the more recently developed Racehorse Doping Ban Act of 2019, aka Udall/Wyden, simple and straightforward. It defines the structure for regulatory oversight that will effectively control the flow of drugs in racing.”