Owning Up, Part I: Racing Rules

At the 2007 Jockey Club Round Table Conference, Chairman Ogden Mills “Dinny” Phipps opined that “the stewards of The Jockey Club think it’s a disgrace that numerous horses in our sport’s most prominent and highly visible races are routinely trained by people who have repeated medication violations. At the present time, there are no penalties for owners of horses that test positive for a banned substance. In the past, we believed that was correct. But if owners are picking trainers who are routinely fined or suspended for medication infractions, we should reconsider an owner-responsibility rule.”

Up north, the Ontario Racing Commission did more than just consider it.

On January 23, 2008, Rod Selling, Chair of the Ontario Racing Commission (ORC), issued a statement announcing the enactment of new regulatory measures “designed to protect the health of the horse, ensure the safety of the participant, and reinforce the integrity of [horse racing].” Among the new regulations was a rule imposing an automatic ninety-day suspension of any horse that tests positive for a non-therapeutic drug.John L. Blakney, Executive Director of the ORC, described this owner accountability rule as “an aggressive move to improve the welfare of the horse and communicate that the ORC is serious about owner responsibility and eliminating the use of illegal medications.”

State racing commissions all employ some variation of a trainer responsibility rule, theoretically placing the burden on the party best able to protect the horse. But by placing the great majority of responsibility on the trainer, trainer responsibility rules strip away responsibility from the owner, essentially permitting the owner to make decisions as to training, veterinary care, and other aspects of their horse without significant fear of negative consequences. This dearth of responsibility is what the ORC targeted in the issuance of its new mandatory penalty rule. The Commission noted that “[a] number of obvious situations have arisen where an owner has had a number of his/her horses test positive for a banned substance,” and that “[t]he current suite of rules [did] not provide any burden of responsibility on the owner for the positive tests incurred by his/her horses.”By creating a scheme of owner responsibility, the ORC intended to “encourage owners to conduct proper due diligence in selecting their trainers.”

I cannot imagine it’s very easy for many owners to monitor their horses’ care with any significant degree of diligence, especially if they’re new to the game. How many owners can tell if their horses have clean legs, what kind of equipment they’re wearing and why, or even if their horses are tracking evenly at the trot? But it’s useless to bemoan the decline in horsemanship, because we are simply too far past the era where that kind of knowledge is common. Horsemanship takes a lot of time and a lot of patience, both of which are at a premium in this day and age.

But it’s not just the horses themselves that might prove elusive; trying to interpret the rules and regulations of various state racing commissions is quite a task in and of itself. Maybe when you get an owners’ license they send you a handy, easy-to-read manual with little illustrations and an appendix of definitions. If not, you’re stuck with reading the regs as they’re presented by the commissions that draft them.

Here’s just one regulation, 810 K.A.R. 1:028, the Kentucky reg that governs disciplinary measures and penalties. It’s five pages, single-spaced, and confusing. But a careful review of the regulations that govern horse racing in Kentucky reveals an interesting provision tacked to the end of the penalties listed for each class of prohibited substances.In addition to fines, forfeitures of purses, and license suspensions, the reg states that “[a] horse administered a Class A drug in violation of 810 Ky. Admin. Regs. 1:018 shall be subject to suspension from racing in Kentucky as follows: (1) [f]or a first offense, a suspension from zero to sixty (60) days; (2) [f]or a second offense, a suspension from sixty (60) to 180 days; or (3) [f]or a third offense, a suspension from 180 to 240 days.”For each of the remaining classes, B through D, as well as for TCO2 (milkshaking) penalties, the regulation sets out suspension periods, of up to one year (for a fourth TCO2 offense) for a horse that tests positive for the particular substance.

It’s a horse suspension penalty, just like that of the ORC. But unlike Ontario’s owner responsibility rule, Kentucky’s horse suspension penalty is not mandatory. The reg says the horse, “shall be subject to suspension” rather than “shall be suspended.” It’s a tricky grammatical distinction. Does it create an optional penalty that could be used by the KHRA/KHRC in its discretionary capacity in some un-specified circumstance? If it does, I can’t find any instance where it was applied. Of course, the offense would have to be repeated or very serious to warrant a penalty that was longer than a horse is normally resting between races anyway.

But what if Kentucky changed the language from “shall be subject to suspension” to “shall be suspended?” It’s probably best examined in light of the cases interpreting the current regulations, particularly those imposing a presumption of liability on trainers. Arguably, a mandatory horse suspension imposes strict liability on its owner, who may have little or no control over the care of the horse on a daily basis. Indeed, trainers are held primarily responsible for the very reason that they are seen to be in the best position to monitor the horse and ensure that it is not administered prohibited substances before a race. However, while an owner may not control the horse on a day-to-day basis, the responsibility that the trainer has is the result of a delegation of authority from a principal – the owner – to an agent – the trainer. The owner makes the decision whether to delegate the authority, and to whom to delegate it. It is perfectly reasonable that an owner should be held accountable for that decision. Indeed, basic common law agency principles dictate that the owner should be liable for any acts of the trainer while the trainer is acting within the scope of his authority.

That an owner might be required to conduct due diligence before hiring a trainer, to avoid those trainers who might administer prohibited substances, can only strengthen the integrity of a sport where all too often agents take advantage of inexperienced or unknowledgeable owners. Implementing a rule that shifts some responsibility to the owner would encourage a new owner to seek a trainer without multiple drug infractions. Moreover, by shifting responsibility, an owner responsibility rule would lighten the burden on a trainer and reduce the likelihood that an owner might personally cause a drug to be administered to his horse, knowing that the trainer would no longer bear the majority of the responsibility if the substance were to be detected.

It’s too soon to tell how effective the ORC’s new rule will be, but I will be watching with interest. Meanwhile, KHRA has reorganized and received a spiffy new moniker, KHRC. Supposedly, tougher regs are to follow. Only time will tell. Unfortunately, Steve Beshear didn’t appoint me to the Commission, so if anyone could be kind enough to pass along the above suggestion, I’d be much obliged