Friday, October 9, 2015

What's Wrong With the Tonko-Barr "Racing Integrity Act"

            With Keeneland and the International Federation of Horseracing Authorities the latest to jump, or perhaps be pushed, onto the bandwagon of support for the so-called “Thoroughbred Horseracing Integrity Act of 2015,” a.k.a. Tonko-Barr for its House of Representatives sponsors, perhaps it’s time to shed a little light on what this legislation would actually do.

Briefly, Tonko-Barr would direct the U.S. Anti-Doping Agency (the folks who brought down Lance Armstrong and who police this country’s human Olympic athletes) to create an independent, thoroughbred racing-specific, non-governmental and non-profit organization to establish uniform drug rules for thoroughbred racing. Apparently, the bill’s supporters think that rolling out a little more support every day will generate momentum to get the bill through a Congress that, left to its own devices, would have a hard time approving a resolution in favor of mom and apple pie.

It seems highly unlikely that Tonko-Barr) is going anywhere in a hurry. Yet, once introduced, bills sometimes take on a life of their own. So, just to clear the air, here’s a comprehensive explanation of why, in my opinion, this bill is a complete disaster that would do far more harm than good. By way of disclosure, I’m vice-president of the New York Thoroughbred Horsemen’s Association (NYTHA), and the views here reflect what I’ve learned in my 13 years on the NYTHA’s Board, as well as significant input from my friends and colleagues Rick Violette, Alan Foreman and Andy Belfiore. 

Before looking at the bill itself, let’s look at who’s behind it. As with any piece of legislation, the identity of its supporters gives a clue as to the real agenda. So here are the major proponents:

The Jockey Club: the breed registry, responsible for the American Stud Book in Thoroughbred racing. It is an exclusive private, self-financed and appointed organization (a la Augusta National) comprised of some 100-plus of the richest breeders in the sport.

The Water Hay and Oats Alliance (WHOA): formed in 2014 for the sole purpose of eliminating Lasix in Thoroughbred racing.  Its members are also members of The Jockey Club and Breeders Cup, as well as breeders, primarily from Kentucky.

The Breeders Cup: the organization formed by Kentucky breeders to conduct a championship day of racing in the fall to promote the breeding and sales of American horses and their offspring in the international market. The Board of Directors is comprised of members of The Jockey Club, WHOA and breeders, primarily from central Kentucky.

The Kentucky Thoroughbred Owners and Breeders (KTOB): the Kentucky breeders’ organization.

The Kentucky Thoroughbred Association (KTA): organized as a rival group to the Kentucky HBPA. It is comprised primarily of Kentucky breeders, and shares the staff, officers and directors of the KTOB.

The Humane Society of the United States (HSUS): responsible for the demise of Greyhound racing in the United States.  HSUS is anti-horse racing and supports the elimination of Lasix and further restrictions of the use of therapeutic medications in racing horses.

            Support for this bill pits a small group of elitists against most of those who work in the thoroughbred racing industry. Just like Republican Party policies in general, the bill is an attempt to take from the poor – the thousands of hard-working blue-collar trainers, owners, stable hands and farm workers – and give to the rich, by reclaiming horse racing as a plaything for those born with too much money and those who have gotten rich in the hyper-capitalist culture of present-day America. Class warfare? You betcha.

            OK, with that out of the way, let’s take a look at the bill itself. It ain’t pretty.

            For a start, the bill applies only to Thoroughbred racing. If the supporters’ concern really is doping in horse racing, why is the bill restricted to Thoroughbreds, when there is significant Standardbred and Quarter Horse racing in the United States, all regulated by State Racing Commissions, and significant evidence of drug use in those breeds that’s far more prevalent than in Thoroughbreds?

Next, the bill includes a number of “findings,” which are supposed to be facts that Congress takes into account as reasons for the legislation. The only problem here is that a number of these “facts” in Tomko-Barr aren’t, well, all that factual.

            First, the bill says that the Interstate Horse Racing Act of 1978 applies to Thoroughbred racing. Wrong. The 1978 Act, which authorizes interstate betting and gives horsemen’s groups (except at NYRA tracks, but that’s another story) the right to bargain collectively with track owners, applies to all racing – Thoroughbred, Standardbred, quarter-horse, even greyhounds. The Interstate Horseracing Act of 1978 was not enacted to protect the Thoroughbred industry. It was designated to facilitate wagering on all racing in the United States, regardless of breed.  It was designed to protect the horsemen and small tracks from the predatory practices of large tracks, to protect the horsemen and the tens of thousands of workers in racing from unregulated wagering via simulcasting (an emerging phenomenon in the late 1970s). The Act was a product of total consensus by the entire racing industry of all breeds.

            Second, the bill’s “findings” justify federal action by stating that almost 50% of Thoroughbreds race in more than one state. True, but misleading. The overwhelming majority of “multi-state” horses race in the mid-Atlantic (Maryland, Delaware, Pennsylvania, New Jersey), the very states that have been in the forefront of promoting uniform drug policies and whose horsemen’s associations are uniformly opposed to federal legislation.

            According to the Bill, Uniform adoption of national anti-doping standards for Thoroughbred horseracing in the United States will promote interstate commerce, encourage fair competition and a level playing field… This assertion is not substantiated and makes assumptions not consistent with individual State policies affecting fair competition and a level playing field. The impact on interstate commerce is pure conjecture.

            Third, the Bill states that uniform adoption standards will promote full and fair disclosure of information to purchasers of breeding stock and the wagering public. Wrong. There is no such provision and the bill doesn’t cover sales or information for the betting public not already made available.

            Fourth, the Bill states that uniform standards will improve the marketplace for domestic and international sales of the American Thoroughbred, will provide a platform for consistency with all major international Thoroughbred horseracing standards, address growing domestic concerns over disparities with international rules There is only one disparity between the U.S.  and international racing – the raceday administration of Lasix. That is what this bill is all about concocting a mechanism by which The Jockey Club and the breeders can force their position on the elimination of Lasix upon an industry that opposes them. It gives USADA the power and authority to eliminate the use of raceday Lasix.

            The desire to improve the market for international sales has often been cited by those who participate in those markets as the reason they seek the elimination of a 30-year-old equine welfare policy to safeguard horses from Exercise Induced Pulmonary Hemorrhaging (EIPH). According to a 2015 Consensus Paper of the American College of Veterinary Internal Medicine (ACVIM), EIPH is to be recognized as a disease for which there is some evidence that furosemide (Lasix) treatment can be beneficial.

            The Coalition says that the Bill says nothing about Lasix. To the contrary, it is all about eliminating Lasix. It is another effort by the Coalition members to eliminate the raceday use of Lasix and to fulfill a promise that was made to the European breeders that Lasix would be eliminated.

            Most importantly, the elimination of Lasix is not in the best interest of the health and welfare of the horse. Members of the Coalition have stated, “Lasix is good for the horse, but bad for business.  Their goals focus on improving the international marketplace for their horses and changing public perception. They began pushing for the elimination of Lasix on the theory that if the industry did so, the fans would line the entrances to the tracks each day and the Internet would be overloaded with online bettors.  Their theories and their goals are flawed and have never been about the health and welfare of the horse.

            It is indisputable that most Thoroughbreds suffer from EIPH the disease that causes respiratory bleeding.  Lasix is recognized as the most effective medication in the treatment of EIPH.  The industry has strict regulatory controls on the administration of Lasix, including time, dose and means of administration. It is made available to every horse to ensure a level playing field for the competitors and the betting public.” There is not a single scientific study to substantiate the claim that Lasix is detrimental to the horse.

            The horsemen, racetracks, regulators and veterinarians have long held that, until there is an alternative to Lasix that will address the disease that is common in Thoroughbred horses in the U.S., the current policy should remain        

            Fifth, the bill says it “will provide a platform for consistency with all major international Thoroughbred horseracing standards This language is ambiguous as to which international standards pertaining to raceday medication should apply. As all major racing jurisdictions in both Canada and the United States consider the administration of a publicly disclosed medication to mitigate EIPH four hours prior to a race to be an equine welfare precaution, it is unclear the scientific or medical justification to abandon this standard to move toward those European jurisdictions that do not hold the same standard.

            Racing in North America is different from racing in most of the rest of the world. Horses here are stabled primarily at racetracks and get too little outdoor time. And horses in North America race primarily on dirt. Both those factors contribute to enhanced rates of EIPH. In fact, in those jurisdictions where conditions most closely mirror the US – Hong Kong and Singapore – bleeding rates are even higher than in the US. Uniformity in international rules is a red herring.

            Sixth, the Bill states that the U.S. has been unable to adopt a uniform anti-doping and drug-testing program. Wrong. The industry is in the midst of implementing the most historic and comprehensive uniform medication and drug testing program in a generation. Indeed, the Bill is redundant to what the industry is now doing. It ignores the historic strides made by the National Uniform Medication Program, which has been adopted by jurisdictions representing more than 70% of the national handle.

            There is, in fact, substantial uniformity among State Racing Commissions, which do not permit performance-enhancing substances to be present in a horse when it races. The ARCI Model Rules and Prohibited Substance listing (Uniform Classification Guidelines for Foreign Substances document) form the foundation of racing regulatory policy in all jurisdictions. Drug testing laboratories must adhere to the ARCI and Racing Medication and Testing Consortium (RMTC) laboratory standards and be internationally accredited to the ISO17025 standard. The overwhelming majority of racing samples are tested in labs that participate in the RMTC accreditation process.

            Seventh, the Bill states that because the States have failed to adopt a uniform anti-doping program, rules, procedures and enforcement should be implemented consistent with internationally accepted best practices, by an independent anti-doping organization authorized by an Act of Congress.  This is code for the elimination of raceday Lasix and turns over drug policy and enforcement to an organization comprised of handpicked outsiders and Coalition members (breeders).  It would strip the States of authority and regulatory control of State sanctioned, controlled and legislatively authorized businesses, and strip owner and trainer licensees and others of constitutionally protected rights under State and Federal laws.

            The purpose of this “finding” is clearly to direct that State-enacted policies, adopted after proper review, public comment, legislative direction or ratification, and promulgation consistent with governing statutes that may differ in some way from unspecified international standards are to be replaced at the discretion of the entity being created by this proposal.

            Eighth, the Bill subjects tracks’ ability to simulcast (their most significant revenue source) to the authority of a private group with no investment in or knowledge of the industry. It gives the USADA authority and responsibility that it does not have over human athletics, i.e. the ability to set and modify medication guidelines. In human athletics, USADA has no such power, an international agency, WADA, sets guidelines for the human athletics it regulates. USADA merely enforces those guidelines.

            Ninth, the Bill sets up a false standard by referring to a UNESCO Convention: By ratifying the UNESCO Convention, the United States agreed to adopt appropriate measures consistent with the principles of the World Anti-Doping Code and to take appropriate action, including legislation, regulation, policies or administrative practices to implement that commitment.” True, but once again misleading. The UNESCO Convention applies to people, NOT to horses. There are equestrian events in the Olympics. Equestrian sport internationally is governed by private governing bodies in each country. In the United States, the governing body is the U. S. Equestrian Federation. It is a private organization. It regulates itself and has its own rules.  USADA has no involvement whatsoever.  It has no expertise in the equine sport and equine drug testing. USEF has its own laboratory, and cooperates with other international equestrian bodies through the Federation Equestrian Internationale (FEI). USADA has no involvement with the FEI.

            And that’s just the so-called findings of fact in the bill. Once we get to the operative provisions, there’s even more to be concerned about.

            The Bill would cover owners [§3(9)], trainers [§3(20)], veterinarians [§3(21)], agents of these individuals and all backstretch workers. Each of these persons would be subject to investigation and penalty. Breeders are not covered. This definition would weaken, if not eliminate, the longstanding trainer-responsibility rules by putting all owners, veterinarians, trainers, and others working with a horse in the same category. Anyone involved with the horse would be exposed to sanctions at the direction of the entity being created by this proposal. As a private entity, the Authority would not be publicly accountable in the formation or execution of rules assigning liability to covered persons.

            The Bill would effectively remove state racing commissions from their regulatory role, at least with respect to drug rules and enforcement. Interesting to note how many Republicans (who clearly make up the bulk of the Bill’s supporters) are suddenly willing to stomp on states’ rights when it serves their purposes.          The Bill would become effective on January 1, 2017, and, at that time, the Anti-Doping Authority created under the Bill would have exclusive jurisdiction for anti-doping matters for all covered horses, persons and races in Thoroughbred racing. The State Racing Commissions will be completely stripped of their authority in medication and drug testing matters, policy and regulation.

            It will be difficult, if not impossible, for State Racing Commissions to regulate under this Bill. Many regulate both Thoroughbred and Standardbred racing and some regulate Thoroughbred, Standardbred and Quarter Horse racing. Each breed has the same issues. Testing is done for all three.  How do you calculate who pays and who doesn’t? How will the labs be properly funded?  How do you avoid what will be an onslaught of litigation?

            The Bill would create a new, quasi-public Authority, to be composed of the CEO of USADA (Travis Tygart), 5 USADA Board members and 5 individuals from the Thoroughbred industry, none of who can (1) have a financial interest or provide goods or services to covered horses (i.e., no owners or trainers); (2) be an officer, official or serve in any management capacity for any Thoroughbred industry representative (i.e., nobody from track management or from horsemen’s associations); or (3) be an employee or have a business or commercial relationship with any such individuals or organizations. Given these limitations, which eliminate anybody who might know anything, I have no idea who could serve on the Board. The Bill virtually eliminates anyone with any knowledge and expertise of horse racing from serving on the Authority.

            Majority control of the proposed Authority is vested in the U.S. Anti-Doping Agency. Non-USADA Board members are selected by USADA. It is important to note that USADA has no experience with equine welfare matters, which is vital to striking a balance between humane horse treatment and ensuring the integrity of each racing contest.

            USADA starts out with a six-member majority on the new 11-member Authority Board. The remaining five members are to be chosen by USADA from people nominated by various racing constituencies, but if USADA doesn’t like any of the nominations, it can just go ahead and pick whomever it likes as the additional Board members.

            As for the substance of the medication rules, the Bill provides that the Anti-Doping Program must include: (1) a list of therapeutic and prohibited substances; (2) a schedule of sanctions for violations; (3) programs relating to anti-doping research and education; (4) testing procedures, standards and protocols for both in-competition and out-of-competition testing; (5) procedures for investigating, charging and adjudicating violations for enforcement of sanctions; and (6) laboratory standards for accreditation, testing requirements and protocols. This is totally duplicative of how the industry is currently regulated. It is re-inventing the wheel.

            State and federal laws and regulations already govern the practice of veterinary medicine and substances available for proper veterinary care. This language puts the Authority in the role of regulating the practice of veterinary medicine. Moreover, a list of prohibited substances and methods already exists in the RCI Model Rules and prohibited substance standards.          Penalty guidelines also exist and are contained in the RCI Model Rules, and procedures, standards and protocols already exist at individual State Racing Commissions and are routinely entered into evidence when a regulatory infraction is appealed.

            Investigation and adjudication procedures already exist and are governed by laws governing such regulatory matters in the applicable states. All major racing laboratories are accredited to the international ISO17025 standard and participate in the quality assurance program of the International Association of Official Racing Chemists performed by the officially accredited Canadian Pari-Mutuel Association. In addition, the Racing Medication and Testing Consortium has an accreditation program and developed lab standards which have been adopted by the ARCI and relied upon by State regulatory agencies when procuring laboratory services. Again, this is something that already exists.

            The Bill provides that the Authority must take into consideration international anti-doping standards when creating the list of permitted and prohibited substances and other rules for lab testing in- competition and out-of-competition testing and sanctions. This means they must eliminate raceday Lasix, which is on the WADA list of banned substances. This shifts State drug testing programs to the Authority and eliminates the need for the existing programs or personnel of State regulatory Commissions. As this language only applies to Thoroughbred racing, those states regulating Standardbred or Quarter Horse races will need to keep a drug testing, investigative, and adjudication infrastructure in place and current costs currently allocated across all breeds will need to be absorbed by Standardbred and Quarter Horse racing activity. It also shifts investigations and the responsibility for adjudicatory hearings associated with medication rule violations in Thoroughbred racing to the Authority. There is no provision for appeals beyond the Authority. Whatever we think of the absurd length of time that it currently takes for courts to hear appeals, there’s clearly a due-process issue here.

            The Bill provides that testing laboratories are required to have RMTC Code Accreditation. The States will procure laboratory services, but must comply with the protocols established by the Authority. The accreditation standards provision is redundant to policies in existence as the accreditation standards of the Racing Medication and Testing Consortium and the International Organization for Standardization exist for State Commission labs. With few exceptions, State Commissions require international (ISO17025) and RMTC laboratory accreditation.

            The funding provisions of the Bill are also a cause for concern. The Authority will be initially funded by loans (The Jockey Club, Breeders’ Cup, WHOA, etc.). Thereafter, the Authority will access a per start fee to repay its loans and cover its costs. The State Racing Commissions will be responsible for collection the fees and paying them to the Authority by the 20th day of each month. This will amount to a significant tax on each owner and trainer in addition to all of the other currently assessed licensing fees, workers’ comp payments, etc. In essence, the horsemen will be required to pay for this program. The States have to implement the assessment. The tracks initially opposed the Bill because they said they would not pay.  The Coalition certainly doesnt want it to come from takeout, which is prohibited under the Bill, so they are taxing the owners and trainers. Horse ownership is already a losing business, whatever public perception may be, and the addition of an unknown future assessment certainly won’t help recruit new owners. The Bill itself makes no attempt to calculate what this Authority will cost and sets no limits. State Racing Commissions will be responsible for collecting fees, but how much will the fees be, and who will pay them? There is no telling how much of a financial burden this Authority would place on horsemen. The horsemen will be required to fund the Authority while having no input as to how much it will cost or how the monies will be spent.

            In addition, there is not one dime of federal assistance to combat instances of horse doping in Thoroughbred racing provided in this proposal. Congress currently allocates approximately $9,000,000 each year to the White House Office of Drug Policy to support anti-doping activities in sport. This proposal does not require that any of those funds be used to assist efforts in horse racing.

            Unlike a government agency whose financial support is reviewed, transparent and publicly accountable, the Authority is permitted to accept private donations not disclosed to the public, creating the possibility that certain covered persons could exert undue influence by virtue of monies they have contributed or loaned to the Authority. Under this construct the independence of the entity is undermined as it is financially beholden to private individuals or organizations and not part of a public process as state agencies are.

            Under this proposal, the Authority determines its own budget shielded from public and industry review, accountability and input. An assessment is then levied on the states to fund operations and debt service on whatever private loan arrangements they have made. In essence, the Authority is given a blank check.

            I’m sure there’s more, but that will do for a start. This is a bad bill, one that deserves to slink quietly away and be seen no more.