Quality Control

A year ago, I started writing my article, or “note,” for submission to the law journal. Splashed across the industry news was the saga of Patrick Biancone and the cobra venom found in his Keeneland barn, a five minute drive from my apartment. The premise of my paper was simple: the regulation of prohibited substances in racing was not working.

The Biancone story followed me, providing examples for my paper like a series of stark illustrations. The trainer-responsibility rule, delayed hearings, bargaining-away penalties, questionable jurisdictional reciprocity, the ability of a trainer to pass horses to an assistant during a suspension – Biancone was the poster child for a broken system.

Like many before me, I documented the cracks in the foundation, forecasting collapse, and I dismissed federal regulation based on history and industry resistance. But then came the hard part. Every law review article highlights a problem or questionable area of the law, analyzes it, and presents a solution. Unwittingly, naively, I had given myself the task of solving the problems that racing commissions, industry organizations, and the federal government haven’t sorted out yet. For the record, I was no more successful than they were; the unwieldy beast of a paper was not selected for publication, perhaps for the better, since most of what I wrote has since then been hashed and rehashed in headlines, blogs, and blue ribbon committees.

My thesis, however, deserves revisiting in the wake of the most recent Jockey Club Round Table discussions. My proposal was for a system of industry self-regulation, modeled on the United States Equestrian Federation (and FEI), and spearheaded by the Jockey Club. The JC already has a broad-reaching infrastructure in place, and all those information systems could be utilized to propagate model rules, and record drug positive, penalties, and suspensions. The USEF and the FEI (International Equestrian Foundation) would provide the archetype for a centralized testing lab, rules, and standards.

And the Jockey Club seemed pointed in the right direction anyway. After all, at the 2007 Round Table conference, Dinny Phipps said that “[t]here is nothing more important to the Jockey Club and the stewards of the Jockey Club than resolving the medication dilemma. We have to level the playing field, for the sake of this industry and everyone involved in it.” Naturally, based on comments like this, I assumed that the Jockey Club had put some serious thought into the matter. Which was why I read Paulick’s run-down of this year’s Round Table with some discomfort. At least Alan Foreman was hitting the right points, but the fact that he needed to point out the numerous flaws in the drug testing system was astonishing.

At any rate, I fervently hope that those able to participate in the Round Table discussions heard Foreman make one of the most important comments that anyone in the industry has made in the last few months: “We must explore the possibility of a public/private partnership or look at the feasibility of joining with our colleagues in the performance horse industry who share our problems, concerns and ideals.” (emphasis mine)

A thousand times yes, Alan. And I agree not just because I’ve advocated this idea, but because it just seems so obvious that I can’t believe it has to be pointed out. The USEF and FEI have some of the most high tech, state-of-the-art drug testing labs, not just as far as horses go, but in terms of all drug testing. They conduct cutting-edge research and introduce novel methods of preventing interference with a horse’s performance. Only good can come of this alliance – for participants, and especially for horses.

The FEI, in particular (USEF uses FEI drug rules), has created the kind of database of information for competitors that the Jockey Club has the potential to create. You can keep track of case status, hearings, and sanctions. The rules for vets and for riders are easy to find. But most strikingly, in terms of both quality control and disclosure, are the lists painstakingly compiled and disclosed each year listing the horses that tested negative. There are 12 pages so far for 2008.

Releasing negative results is such a simple idea that I hadn’t even really thought of it in context with the racing industry until a vet mentioned it the other day. But how else is the industry to know how many horses are being tested, how many are testing positive, and for what? Moreover, how else can the industry keep track of whether the horses that test positive are actually reported?

Let’s say the regulatory authority contracted with a central, private lab like the USEF drug testing lab. Then, in the model rules, it set threshold levels for all substances that could cause a horse to test positive through environmental contamination, and published a list of all horses that test either positive or negative. That way there could be no ‘undisclosed’ thresholds, virtually no need for the environmental contamination defense, and no way for a racing commission to play favorites with test results. This is the kind of role the Jockey Club could play in the industry regardless of whether or not it functioned as a central governing body. Moreover, this is just a single area of drug regulation that the Jockey Club could shine a little light on. Imagine the possibilities.

Back in Kentucky, KHRA/C alleges that Mr. Biancone violated terms of his settlement agreement. In June of 2008 they were supposed to have held a hearing to determine whether to accept another settlement extending Biancone’s Kentucky suspension, while shortening the period that he can’t apply for a license in other jurisdictions. I don’t know what happened. There’s nothing on the KHRC website, and nothing in the industry news.

Like others in the periphery of the racing world, I’m left in the dark.