Once again, the Thoroughbred Brief offices have been abuzz this week as I have followed various legal proceedings in Kentucky (thanks to the Paulick Report and Bloodhorse for feeding me information from the real world). From Judge Crittendon’s unsurprising ruling against the sale of the 20% minority interest in Curlin, to Judge Ishmael’s reprimand of Jess Jackson’s attorneys when he dismissed Jackson’s claims against Buckram Oak, to the KHRC committee meeting where the Commission considered possible regulations, including the licensing of training centers, jockeys’ vest requirements, and a new “crop” rule, to the KHRC hearing of veterinarian Rodney Stewart’s appeal of his 5 year suspension for various violations of KHRC regs, including possession of prohibited substances (including cobra venom), possession of mislabeled drugs, and failure to report Patrick Biancone’s infractions to the Commission, to Judge Hood’s intention to move the Classicstar litigation along more expeditiously. Did I forget anything? At any rate, being the regulatory geek that I am, the one I found most interesting is the KHRC meeting considering the licensing of training centers. What follows is a bit of a legal knievel move as I take the current regs and leap boldly into the possible implications of this proposition.
Licensing of Training Centers
The justification given for possibly requiring that training centers in Kentucky be licensed by the Commission was mainly fire prevention and other safety concerns, in light of the 4 fires that have occurred at Riverside Downs in the last five years. These centers, according to Ron Mitchell of Bloodhorse, are already “subject to an on-site visit by a KHRC staff member before being approved to have workouts from their facilities officially recorded and accepted for publication,” a process that “mainly focuses on the track surface, condition of the starting gate, and other areas related to racing safety.”
Requiring training centers to be licensed would not only allow the Commission to ensure that the facilities are safe, but it would also subject the centers to the jurisdiction that the KHRC exercises over all licensees. And that jurisdiction is very broad. The things that immediately come to mind are the possibility of out-of-competition testing, since the horses would be on a licensed facility, and control over trainers who have been suspended in the state, but who continue to train and send their assistant trainers to the tracks for the actual races (legal under the regulations).
810 K.A.R. 1:018, Section 15(1), for instance, provides that: “A veterinarian licensed by the Authority and practicing at a location under the jurisdiction of the Authority shall at all times be considered under the supervision of the Authority veterinarian and the stewards.” While a “location under the jurisdiction of the Authority” expressly means only tracks right now, tracks are the only locations that are licensed. It stands to reason that once training centers are licensed, the broad jurisdiction of the KHRC will extend to those as well.
Extending that reasoning, the following is from Section 19 of the same regulation:
Section 19. Other Prohibited Practices. In addition to other prohibitions set forth in this administrative regulation, the following shall be prohibited:
(1) The possession or use of a drug, medication, or substance by a licensee, or his designee or agent, to a horse within a nonpublic area at a location under the jurisdiction of the Authority:
(a) The use of which may endanger the health and welfare of the horse; or
(b) The use of which may endanger the safety of the rider.
(2) Without the prior permission of the Authority or its designee, the possession or use of a drug, medication, or substance that has never been approved by the U.S. Food and Drug Administration (USFDA) for use in humans or animals at a location under the jurisdiction of the Authority. The Authority shall determine whether to grant prior permission after consultation with the Equine Research Drug Council. [TBbrief: This should encompass cobra venom, I'd imagine]
(3) The possession or use of the following blood-doping agents at a location under the jurisdiction of the Authority:
(a) Erythropoietin;
(b) Darbepoietin;
(c) Oxyglobin;
(d) Hemopure; or
(e) Any substance that abnormally enhances the oxygenation of body tissue.
[TBbrief: possession OR use of blood dopers catches a lot of shady activities]
As I noted above, many commentators have pointed out that the suspension of a trainer’s license often does not impose much of a burden on the trainer, who can simply train his or her horses at a training center and then send the horses to races with his or her assistant trainer. But the licensing of training centers could effectively prohibit even that. 810 K.A.R. 1:028, Section 2(5) provides that “[a] licensee whose license has been suspended or revoked or a horse that has been suspended, shall be denied access to locations under the jurisdiction of the Authority during the term of the suspension or revocation.” And, just like that, a big regulatory loophole could be closed.
Now, the idea of licensing training centers has only been discussed in a Safety and Welfare Committee meeting; as far as I know, nothing substantive has been introduced. But the above is at least a useful exercise in playing with the regulations to see how they could be more effective and ensure compliance with rules and penalties.
There has been a lot of negativity directed at the way that racing is currently regulated, and much of it is warranted. And, yes, the administrative procedures that must be complied with can sometimes slow the system and give the appearance of stasis or even apathy. But the states do have a legitimate interest in protecting public health, safety, welfare, and morals. That’s PUBLIC health, safety, welfare, and morals. That’s you, the reader, the public, the horseplayer, the peripheral fan, the owner, the trainer, the jockey, the vet. All states publish their regulations somewhere; some might be harder to find than others. They also must comply with administrative procedures when issuing new rules and regulations. One of these procedures is a notice and comment period where they allow time for the public to comment on proposed regulations, and the racing commission usually must take all comments into the record, and take them into account when issuing a final rule.
For example, if you live in Kentucky, and want to have a say in the state’s promulgation of a new 810 K.A.R. 1:025, which includes licensing procedures and all of the reasons that a license can be suspended, revoked, etc., KHRC provides the following information:
PUBLIC HEARING AND PUBLIC COMMENT PERIOD: A public hearing on this administrative regulation shall be held on December 29, 2008, at 10 am, at the South Park Theatre at the Visitor’s Information Center, Kentucky Horse Park, 4063 Iron Works Parkway, Lexington, Kentucky 40511. Individuals interested in being heard at this hearing shall notify the Kentucky Horse Racing Authority in writing by December 22, 2008, five working days prior to the hearing, of their intent to attend. If no notification of intent to attend the hearing is received by that date, the hearing may be cancelled. This hearing is open to the public. Any person who wishes to be heard will be given an opportunity to comment on the proposed administrative regulation. A transcript of the public hearing will not be made unless a written request for a transcript is made. If you do not wish to be heard at the public hearing, you may submit written comments on the proposed administrative regulation. Written comments shall be accepted until December 31, 2008. Please send written notification of intent to be heard at the public hearing or written comments on the proposed administrative regulation to the contact person below.
CONTACT PERSON: John L. Forgy,Kentucky Horse Racing Authority, 4063 Iron Works Parkway, Building B, Lexington, Kentucky 40511, phone: 859-246-2040, fax 859-246-2039.
No, there is no national governing body. Perhaps there will be one in the future. But until then, we have to make state regulation as comprehensive and as effective as possible.
* And, once again, there really are no Thoroughbred Brief offices. Just my laptop and wherever I happen to be at the time.
2 responses so far ↓
Teresa // December 5, 2008 at 8:39 am |
And what is the training centers’ stance on all of this? I don’t imagine that they’d be too psyched to suddenly be subject to this regulation.
Kerry O'Neill // December 5, 2008 at 10:14 am |
Again, this is all speculative. But as you can see from the quote above, they’re already subject to some level of regulation, and the key here seems to be that, if they want their workouts accepted and published, they have to submit to the level of jurisdiction that the KHRC imposes on them. As to how psyched they’d be about it, that would depend on how the costs/benefits balanced. As a licensee, they would still get their times published, plus the health and safety of those at the facilities would benefit from greater oversight. They would also get any other rights that licensees of the KHRC receive. Moreover, I think this could be constructed in a way that did not create a lot of out-of-pocket costs to the training facilities. KHRC stewards and commissioners would still be in charge of enforcement.
If the only legitimate goal of the KHRC is to ensure the safety of people and horses at these facilities, and prevent more terrible deaths of horses, that is an extremely legitimate interest and justifies the license requirement. And that would certainly be hard to present a counter-argument to.
If the reason the training centers aren’t psyched is that they fear they will lose the business of trainers who don’t want to train in a more restrictive environment … I can understand that, but I don’t really sympathize. The integrity of the sport is under too much strain right now, and it’s hard to legitimize a race to the bottom.