The Beleaguered Sport of Thoroughbred Horse Racing

The Beleaguered Sport of Thoroughbred Horse Racing

5.27.2021

By Bennett Liebman

Background

Thoroughbred horse racing for much of the 20th century was the most popular spectator sport in America.^[1] In recent years, the popularity of the sport has diminished greatly. Gambling opportunities are now abundant throughout the country, and racing has been perceived as indifferent to the goal of preventing animal abuse. Yet, the Kentucky Derby remains the signature horse race in America. This race for three-year-old thoroughbreds, which starts off the Triple Crown series of races, is the most viewed race in America.^[2] The 147th running of the Kentucky Derby was held at Churchill Downs on May 1, 2021. Finishing first in the race was the 12-1 longshot Medina Spirit. Medina Spirit was trained by Bob Baffert, and this would have marked Baffert’s record seventh victory in the race.

Nonetheless, a week later, it was disclosed that the horse had tested positive for the corticosteroid betamethasone. The drug test found 21 picograms of betamethasone measured per milliliter of blood. If a test of the split blood sample taken from the horse also proves positive, it is likely that Medina Spirit will be disqualified. Baffert eventually acknowledged that his horse had been treated with the ointment Otomax to prevent dermatitis. Otomax contains betamethasone. As a rule, drug positives are not revealed publicly until such time as a second split sample test of the specimen confirms the positive. The Baffert positive was announced – although not by the Kentucky Racing Commission – before any testing of the split sample.

In the wake of these developments, Churchill Downs announced that it was excluding Baffert from participation in racing at its racetrack. Pimlico Racetrack in Baltimore would only permit Baffert to run Medina Spirit in the Preakness if the horse passed pre-race drug tests. The horse passed these tests and finished third in the race, thereby ensuring that there would be no 2021 Triple Crown winner. Two days after the Preakness, the New York Racing Association, which conducts thoroughbred racing at Belmont Park, Aqueduct Racetrack and Saratoga Race Course, announced that it would temporarily exclude Baffert from its tracks.

Bob Baffert

For nearly 25 years, Bob Baffert has been the most famous thoroughbred trainer in America.^[3] In 2015, his horse American Pharoah became the first horse to win the Triple Crown since Affirmed in 1978. He repeated his Triple Crown success in 2018 with Justify. He has won 17 Breeders’ Cup races, at least six Kentucky Derbies, seven Preakness Stakes, and three Belmont Stakes. He has become “the face of American horse racing.”^[4]

Controversy has often followed Baffert. In 2000, there was a positive for morphine.^[5] Starting in 2011, seven horses trained by Baffert in California died suddenly over a 16-month period.^[6]

Yet, the main Baffert questions started in 2019 when The New York Times reported that Baffert’s 2018 Triple Crown winner Justify had tested positive for the drug scopolamine in the 2018 Santa Anita Derby.^[7] After a long dispute, the California authorities determined that the positive was caused by environmental contamination in the feed of the horse, and there was no reason to disqualify Justify or to punish Baffert.^[8]

In 2020, Baffert accumulated four positives. His Eclipse Award-winning filly Gamine tested positive on two occasions. At the Kentucky Oaks, Gamine finished third and tested positive for betamethasone. The horse was disqualified, and Baffert paid a $1,500 fine. She had previously tested positive for the local anesthetic lidocaine in an allowance race at Oaklawn Park. Also, at Oaklawn Park, Baffert’s Charlatan tested positive for lidocaine. Baffert claimed that a lidocaine patch worn by an assistant was responsible for the positives. The Arkansas Racing Commission in 2021 largely absolved Baffert of the positives (although it fined him $10,000) and did not disqualify his horses. Baffert’s horse Merneith also finished second in a race at Del Mar and was found to have excessive amounts of dextrorphan in her blood.^[9] Baffert asserted that a staffer was taking the cough syrup containing the drug. Merneith was not disqualified. Baffert, while not suspended, was assessed a fine of $2,500.^[10]

While each incident standing separately might be considered a coincidence, and mistakes are made in the administration of therapeutic medication, rarely has there been such a confluence of drug positives involving as prominent a trainer as Baffert. Also, far out of the ordinary was the fact that Baffert’s penalties for these drug violations were minimal, and the horses (save Gamine in the Kentucky Oaks) were not disqualified. Horses in California have occasionally tested positive over the past quarter century for scopolamine. While there always was the potential for contaminated feed, the trainers were given small penalties, and the horses were disqualified.^[11] Lidocaine positives were frequent in the mid-1990s when lidocaine was added to antibiotic ointments but have been relatively few since then. Again, with the Baffert exception, lidocaine positives resulted in disqualifications.[12]

Racing Regulation

In America, state governments regulate pari-mutuel horse racing. The governing structure is determined by state legislation and regulation. Regulation is overseen by individual racing commissions. The commissioners are all part-timers who receive minimal pay.

The rules governing racing are generally similar among jurisdictions but are not identical, making for occasional discrepancies between states.

Drug Regulation

The commissions test horses for drugs in both blood and urine. In 2018, the racing commissions tested 266,300 samples.^[13]

Drug regulation is the major cost of state racing commissions. They employ the individuals who conduct the urine tests, the veterinarians who take blood from horses, and the individuals who record and ship the drugs. The commissions pay the chemists and laboratories that conduct the actual tests.

Again, the drug rules for each commission are similar but not identical. The similarities include the following factors:

1. The one drug allowed for race-day administration is lasix. While other racing countries do not permit lasix to be utilized on race day, United States jurisdictions have legalized it. The groups supporting lasix believe that lasix promotes equine health by limiting bleeding – exercise-induced pulmonary hemorrhage – in racehorses.
2. The trainer responsibility rule applies to drug testing. “The doctrine of trainer responsibility means that the trainer is responsible for the physical condition of his or her horse. In practice, it requires that when a horse tests positive for a prohibited medication, the trainer bears the responsibility for the drug test.”^[14] While in some jurisdictions, the insurer rule only creates a rebuttable presumption of trainer liability, it is most difficult for a trainer to defend against the responsibility rule.
3. For the non-elite trainer, there is little chance for beating the trainer responsibility rule. Even the top 1% of successful trainers have had little success combating the trainer responsibility rule. Except for Baffert, they have been able to delay imposition of penalties rather than defeat the penalties.^[15]

Most drug violations are caused by human error, not by intentional or willful misconduct. The trainer – or a groom or veterinarian – administered the wrong drug or wrong medication to the wrong horse on the wrong day. While such negligence does require penalties, the major problem in horse racing stems from efforts to find and distribute illicit performance-enhancing drugs that cannot be successfully tested by racing’s laboratories. This was illustrated by the massive 2020 federal indictment of a network of 27 individuals who systematically doped horses and avoided any positive drug tests.^[16] That has been the most consistent threat to the integrity of racing: individuals with the ability to use major performance-enhancing drugs which could not be detected by drug testing.

The Drug Penalties

For much of the 20th century, stewards – the in-game officials at the track– hearing officers, and racing commissions simply used their discretion to determine the length of the penalties assessed to trainers found guilty of drug violations. This process has changed over the last 15 years. The full racing industry created the Racing Medication and Testing Consortium, a group researching the effect of drugs and proposing model rule proposals for drug regulation. Working with the Association of Racing Commissioners International, the umbrella organization representing state racing commissions, they have developed model rules for drug testing and punishment. The penalties are determined by a classification of the drug (based largely on its therapeutic use in horses and the effect of the drug on overall performance) and the prior record of the trainer. They have also developed threshold levels for drugs that are frequently used as therapeutics in horse racing. If the amount of the drug found by the laboratory is below the threshold level, no positive is declared.

The ARCI’s rules are frequently updated. The most recent rules were last updated in December of 2020.^[17] Individual commissions need not follow model rules. Yet, many racing commissions have started to utilize the model drug rules of the ARCI. The one major issue has been the delays involved in a racing commission adopting model rules. The requirements of the doctrine of incorporation by reference mandate that a racing commission would need to separately promulgate any new ARCI model rule for it to become effective.^[18]

The ARCI’s rules require that a positive should not be announced until the trainer is given an opportunity to have a split sample of the specimen tested by an approved laboratory.^[19] The requirement is the case in Kentucky, but there is no formal split sample requirement in New York’s rules.^[20]

Betamethasone

Betamethasone is a steroidal anti-inflammatory drug. It is a class 4 drug, and class 4 drugs are primarily therapeutic medications. Because of its anti-inflammatory action, betamethasone may reduce pain and can have a limited ability to influence performance. Class 4 drugs are in the “Category C” penalty stage. The recommended penalty for a first-time use is a fine up to $1,000 for the trainer with a disqualification of the horse. For a second violation by a trainer within 365 days (this would apply to Baffert’s betamethasone positive for Gamine), the suggested penalty would be a “minimum fine of $1,500 and 15-day suspension absent mitigating circumstances.”^[21]

Baffert claimed that the small level of 21 picograms of betamethasone found in Medina Spirit should be a mitigating circumstance. However, in Kentucky any amount of betamethasone is considered an offense. In Maryland and in New York, the threshold level for betamethasone is set at 10 picograms. Accordingly, this betamethasone finding would also be a violation in all the Triple Crown jurisdictions. Finally, there have been no penalties for betamethasone positives in New York since 1991.

Helping the Bettors

If Medina Spirit is eventually disqualified, will bettors who hold tickets on the presumed winner, the 27-1 Mandaloun, be paid for their wagers? The short answer is no. Payouts are made on the declared order of finish when the race is made official. New York’s rule states, “Rulings of the stewards with regard to the award of purse money, made after the result has been declared official, shall in no way affect the mutuel payoff.”^[22]

Excluding Baffert

Both Churchill Downs and the New York Racing Association have indicated their plans to exclude Baffert from their racetracks.^[23] The question is whether a racetrack has the authority to exclude an individual from racing who possesses a valid license from the racing commission. In Kentucky the courts have been expansive in their treatment of the common law powers of racetrack owners to exclude individuals.^[24] The NYRA situation is far cloudier depending on whether a NYRA exclusion is considered state action. There have been constant reconstructions of NYRA’s board in the 21st century. Given the uncertainties about NYRA’s status,^[25] NYRA will likely act gingerly in its dealings with Baffert and provide him with some manner to contest the length of any penalty. On the other hand, Baffert races sparingly in New York, and it might not be worthwhile to contest any NYRA penalty.^[26]

The Future of Drugs in Thoroughbred Racing

The future of drug use in thoroughbred racing will be determined by the Horseracing Integrity and Safety Act (HISA). The act was part of the huge omnibus Consolidated Appropriations Act, 2021.^[27] HISA is Title XII of Division FF of that legislation, and its effective date is July 1, 2022.

The legislation is the result of a decade-long attempt to bring national uniformity to thoroughbred racing’s drug policies. It places all thoroughbred drug policy and all thoroughbred racing’s safety policy within the purview of an independent, private horseracing integrity and safety authority. The authority will contract with the United States Anti-Doping Agency to enforce the anti-doping and medication control program. The Federal Trade Commission will serve as the oversight body which approves the rules of the authority and determines appeals from decisions issued by the authority.

Thus, there will be uniform national drug rules for thoroughbred racing.^[28] It establishes a single agency with a dedicated mission where the buck should stop. After a three-year period, only a unanimous vote from the authority board would continue the use of race-day lasix.

Yet, it’s never that simple. The grass is not always greener. The best plans for racing often falter, so to speak, at the eighth pole. There are legal challenges to the constitutionality of HISA. The leadership behind HISA has actually called for less testing but more “intelligence-based testing.”^[29] USADA has no expertise in handling equine matters and will be obligated to use the labs and testers that are frequently the subject of the current criticism. Will the FTC act with proper diligence? Is there any way to resolve the inevitable jurisdictional clashes that will emerge from the states, the authority, the FTC and the racetracks? The status quo is always the favorite in horse racing. The underdog may win, but that’s not how you bet them.

Bennett Liebman is a government lawyer in residence at the Government Law Center at Albany Law School. He previously served as the executive director, acting director and the interim director of the Government Law Center. From 1988 to 2000, he served as a member of the New York State Racing and Wagering Board.

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[1]. Stanley Levey, Racing Now Virtual King of Sports, Topping Baseball in Gate Appeal, N.Y. Times (April 30, 1953), https://www.nytimes.com/1953/04/30/archives/racing-now-virtual-king-of-sports-topping-baseball-in-gate-appeal.html.

[2]. 14.4 million viewers watched the 2021 Kentucky Derby. The Derby was the third most-watched non-football game since the pandemic began. John Clay, Back to Nearly Normal, Lexington Herald-Leader (May 4, 2021), https://www.kentucky.com/sports/spt-columns-blogs/sidelines-with-john-clay/article251160359.html.

[3]. “Bob Baffert is now the most celebrated horse trainer in America,” Andy Beyer, Horse Trainer Baffert’s Reputation Keeps Growing, Wash. Post (June 4, 1998).

[4]. Joe Drape, Baffert Takes to Media to Deny Cheating, Ne.Y. Times (May 11, 2021), https://www.nytimes.com/2021/05/10/sports/horse-racing/baffert-medina-spirit-cheating-preakness.html. He has been described as “Bill Belichick, Phil Jackson and Tony La Russa rolled into one.” Bryce Miller, Embattled Trainer Bob Baffert Must Earn Horse Racing’s Trust, San Diego Union Tribune (May 10, 2021), https://www.sandiegouniontribune.com/sports/sports-columnists/story/2021-05-10/trainer-bob-baffert-suspended-churchill-drug-positive-medina-spirit-kentucky-derby.

[5]. Bob Mieszerski, Baffert’s Lawyer Expects a Stay of Suspension, Los Angeles Times (June 19, 2001), https://www.latimes.com/archives/la-xpm-2001-jun-19-sp-12127-story.html. Eventually, Baffert was found not guilty of the violation.

[6]. Joe Drape, California Examines Puzzling Trend of Horses’ Sudden Deaths, N.Y. Times (April 11, 2013), https://www.nytimes.com/2013/04/11/sports/california-examines-puzzling-trend-of-horses-sudden-deaths.html.

[7]. Joe Drape, Justify Failed a Drug Test Before Winning the Triple Crown, N.Y. Times (Sept. 11, 2019), https://www.nytimes.com/2019/09/11/sports/horse-racing/justify-drug-test-triple-crown-kentucky-derby.html.

[8]. California Board Lets Stand Justify’s Win in 2018 Race, Associated Press (Jan. 23, 2021), https://apnews.com/article/horse-racing-bob-baffert-california-c51a9b6d04f6a33fd6fb87c48af48de8; California Stewards Dismiss Complaint about Justify Drug Test, Associated Press (Dec. 10, 2020), https://apnews.com/article/sports-horse-racing-bob-baffert-california-db3b848f45b6dbcf02ad24b7dd92ed9c.

[9]. Baffert Wins at Arkansas Commission, Louisville Courier Journal (April 11, 2021), https://www.courier-journal.com/story/sports/horses/horse-racing/2021/04/20/bob-baffert-wins-again-time-before-arkansas-racing-commission/7305895002/.

[10]. Del Mar Stewards: Baffert Fined $2,500, Paulick Report, (Nov. 30, 2020), https://www.paulickreport.com/news/the-biz/del-mar-stewards-baffert-fined-2500-brinkerhoff-handed-45-day-suspension/.

[11]. Bill Christine, Trainers Hit With Light Fines, Los Angeles Times (Nov. 2, 1994), https://www.latimes.com/archives/la-xpm-1994-11-02-sp-57697-story.html. Bill Christine, Shoemaker Fined by Stewards, Los Angeles Times (Jan. 15, 1995), https://www.latimes.com/archives/la-xpm-1995-01-15-sp-20363-story.html.

[12]. Hall of Fame trainers Steve Asmussen, Bill Mott and Nick Zito have all been punished for lidocaine positives. See Zito v. N.Y. State Racing & Wagering Bd., 300 A.D.2d 805 (3d Dep’t 2002).

[13]. See Legislation To Promote the Health and Safety of Racehorses Focusing on H.R.1754, the “Horseracing Integrity Act of 2019” Before the House Energy and Commerce Subcommittee on Consumer Protection and Commerce (testimony by Edward Martin), available at https://energycommerce.house.gov/sites/democrats.energycommerce.house.gov/files/documents/Martin_Testimony_012820.pdf.

[14]. Bennett Liebman, The Trainer Responsibility Rule in Horse Racing, 7 Va. Sports & Entm’t L.J. 1, 2 (2007).

[15]. Pletcher v. New York State Racing and Wagering Bd. 35 A.D.3d 920 (3d Dep’t 2006); Dutrow v. New York State Racing and Wagering Bd., 97 A.D.3d 1034 (3d Dep’t 2012); Smith v. Cole, 270 A.D. 675 (1st Dep’t 1946).

[16]. See Manhattan U.S. Attorney Charges 27 Defendants in Racehorse Doping Rings, Press Release, U.S. Attorney’s Office, Southern District of New York (March 9, 2020), https://www.justice.gov/usao-sdny/pr/manhattan-us-attorney-charges-27-defendants-racehorse-doping-rings.

[17]. Model Rules & Standards – Association of Racing Commissioners International, https://www.arci.com/model-rules-standards/.

[18]. For example, the New York Gaming Commission uses the 2016 model ARCI classification rules to determine penalty enhancements. 9 N.Y.C.R.R. Part 4045.

[19]. It took 41 days for Baffert’s Arkansas lidocaine positives to be confirmed. Frank Angst, Split Samples for Baffert Horses Come Back Positive, Bloodhorse (July 6, 2020), https://www.bloodhorse.com/horse-racing/articles/242181/split-samples-for-baffert-horses-come-back-positive.

[20]. Despite lacking a formal rule, trainers in New York by policy are given a right to seek a split sample.

[21]. The penalty might be higher if Baffert’s other fines in 2000 are considered violations.

[22]. 9 N.Y.C.R.R. § 4008.4 In 1986, after the stewards at Saratoga improperly disqualified the horse Allumeuse, suits brought by holders of tickets on Allumeuse were dismissed. See Cramer v. New York State Racing Association, 136 A.D.2d 104 (3d Dep’t 1988).

[23]. The Churchill Downs exclusion appears to apply only to its Louisville track and not to other tracks the company owns.

[24]. James v. Churchill Downs, Inc., 620 S.W.2d 323 (Ky. App. 1981). See also Heflin v. Kentucky State Racing Com., 701 F.2d 599 (6th Cir. 1983).

[25]. Contrast Galvin v. New York Racing Association, 70 F. Supp. 2d 163 (E.D.N.Y. 1998) with Murphy v. New York Racing Association Inc., 76 F. Supp. 2d 489 (E.D.N.Y. 1999).

[26]. From 2017–2019, Baffert raced only 32 times in New York, which constituted 3.2% of the starts his horses made. His horses only started twice at Aqueduct. In fact, the frequently glib Baffert allegedly remarked after NYRA banned a trainer for a period which encompassed the Aqueduct meeting, “That’s not a penalty; that’s a present.”

[27]. Public Law No. 116-260 (2020).

[28]. This could also have been accomplished by making the model drug rules of the ARCI part of the Interstate Horseracing Act. 15 U.S.C. Ch. 57.

[29]. Matt Hegarty, Some Resistance, Questions Remain Despite McConnell’s Support of Federal Horse Racing Legislation, Daily Racing Form (Sept. 1, 2020), https://www.drf.com/news/some-resistance-questions-remain-despite-mcconnells-support-federal-horse-racing-legislation.