The Song Remains the Same

I was doing some research at the law library today and came across a law review article written in 1981 by Edward S. Bonnie, an archetype of sorts among equine law practitioners and now a member of the newly-restructured KHRC. The article was called “Corrupt Horse Racing Practices Act of 1980: A Threat to State Control of Horse Racing,” and it detailed the various provisions of the proposed federal legislation. At the time Bonnie wrote his article, industry forces were gathering together to confront the federal threat with proposed methods of self-regulation, and the result was still up in the air. In other words, there were more than a few parallels to the current state of the industry.

I was not impressed by the most recent manifestation of federal interest in the racing industry, for a few reasons. First, it seemed mostly reactionary, spurred by sensationalism and therefore likely to wane when negative publicity faded from the headlines. Second, while I certainly agree that reforms would benefit the racing industry, to the extent that the federal scrutiny centered on “abuse,” there is no reason that the inquiry should be limited to racing, and there are other areas of equine welfare that are far more deserving of intense questioning. Third, there seemed to be no substance to the rhetoric. There was the threat of revocation of simulcasting rights, a lot of criticism based on emotion and/or hearsay, and a general message to “clean up your act.” It’s no surprise the industry acted in a mix of bewilderment and resentment.

A few weeks ago I wrote about the possibility of federal intervention, and what it might look like. It wasn’t until I came across the title to Bonnie’s article that I realized it might be interesting to see what it looked like 28 years ago, when the proposed Corrupt Horse Racing Practices Act of 1980 was introduced. Turns out, the CHRPA had teeth.

The 1980 legislation gave enforcement power to the Drug Enforcement Administration, a branch of the Department of Justice. The DEA would have had the authority to impose both civil and criminal penalties, including fines up to $25,000 for violations. All horses would be subject to pre-race drug testing and a physical exam, and in the case of a violation, the offenders would be disqualified and could be barred from racing for up to 5 years, with the horses suspended from racing as well.

In terms of funding, initial appropriations would be about $5 million (in 1980 dollars), and after the first year each track would be assessed a fee for each day of racing. Those funds would be directed to both enforcement and research. Additionally, the DEA could exempt from regulation any state that enacted and put into operation a program that was comparable to the federal scheme – a generous and interesting provision.

Ultimately, Bonnie painted a bleak picture of the state of racing regulation in the early 80’s. “Racing medication will not be resolved on a uniform national basis,” he wrote. “States and the horse owners and tracks within the states have such dramatically different economic positions that the ability to persuade all states to adopt the same rule is an exercise in futility.” The second sentence is a little hard to parse; at first it seems to imply that uniform rules are simply not feasible. But, reading it again, while Bonnie listed three parties that had adverse interests, he only named one party, the state, that was not amenable to uniformity. The negative implication, whether Bonnie intended it or not, is that the other two parties – tracks and owners – might be amenable to uniformity, or might be the impetus behind a movement in that direction.

28 years down the road, and it looks like the biggest changes have originated from tracks and owners. TOBA’s American Graded Stakes Committee stepped up to the plate and mandated that tracks implement uniform steroid and toe-grab rules by January 2009. And the AGSC specified that those rules could be implemented either by the state racing commissions or the tracks themselves, through house rules, implicating a rough regulatory structure that actually circumvents the racing commission. Fascinating. Permissible? That’s the topic for another day.

In other news, Led Zeppelin is doing their part to take care of retired Thoroughbreds. Nice.