The new Horseracing Integrity and Safety Authority (HISA) board has been formed and Charlie Scheeler has been named chairman of the board.
Scheeler (pictured), a retired partner at a Baltimore law firm, worked as the lead counsel to former Senator George Mitchell’s independent investigation of performance-enhancing substance use in Major League Baseball as well as being a monitor of Penn State’s compliance with the NCAA (National Collegiate Athletic Association) and Big Ten on athletics integrity.
Now he has turned his attention to cleaning up racing, which is mired in its latest drug-related scandal. (I have drawn from this excellent article by Beth Harris at AP and a contributor from AP Sports, Stephen Whyno.)
This latest drug-related incident is Medina Spirit testing positive for the steroid betamethasone after the Kentucky Derby on May 1. Split-sample test results last week confirmed the drug’s presence, according to the attorney for trainer Bob Baffert, and all parties are awaiting the decision regarding possible disqualification by the Kentucky Horse Racing Commission.
Chairman Scheeler said that, under HISA, a trainer would not be the first to announce a positive test result, as Baffert did in a hastily called gathering outside his barn at Churchill Downs, a week after the Derby. “We’ve got to have a system where it’s the enforcement agency that is describing what happened, what the nature of the violation was, what the significance is and what penalties will be subject to the due process afforded the alleged violator,” Scheeler said.
He called it confusing to the public that certain levels of medications are allowed in some of the 38 racing states and not in others, especially since horses frequently travel and race in multiple states. An essential element of this new legislation is that the state-by-state medication rules and penalties will be eliminated and USADA (the United States Anti-Doping Agency) will have consistent rules and penalties in all U.S. jurisdictions.
HISA plans to add an investigative unit to help enforce its anti-doping rules and “follow up on the rumors that you hear in the barn or the syringe that is found in the stall”.
“Some folks just look at it not as ‘should I play fair or not’, but as a very cold-blooded cost-benefit situation,” Scheeler said. “We have to have them see the cost, or the risks, are greater than the rewards.”
Below is some critical language from the HISA legislation that clarifies the specific role of the organisation.
SECTION 5: Jurisdiction of the Commission and the Horseracing Integrity and Safety Authority
Beginning on the program effective date, the Commission, the Authority and the anti-doping and medication control enforcement agency, each within the scope of their powers and responsibilities under this Act, as limited by subsection (j), shall -
- Implement and enforce the horseracing anti-doping and medication control program and the racetrack safety program;
- Exercise independent and exclusive national authority over
- The safety, welfare, and integrity of covered horses, covered persons and covered horseraces; and
- All horseracing safety, performance and anti-doping and medication control matters for covered horses, persons and covered horseraces; and
- have safety, performance and anti-doping and medication control authority over covered persons similar to the authority of the state racing commission before the program effective date.
b) Preemption - The rules of the Authority promulgated in accordance with this Act shall preempt any provision of state law or regulation with respect to matters within the jurisdiction of the Authority under this Act, as limited by subsection (j). Nothing contained in this Act shall be construed to limit the authority of the Commission under any provision of law.
c) Duties - In general, the Authority shall develop uniform procedures and rules and authorizing -
- Access to offices, racetracks facilities, other places of business, books, records, and personal property of covered persons that are used in the care, treatment, training and racing of covered horses; and
- Insurance and enforcement of subpoenas and subpoenas duces tecum; other investigatory powers of the nature and scope exercised by state racing commissions before the program effective date; and
- with respect to an unfair or deceptive act or practice described in section 10, may recommend that the Commission commence an enforcement action.
This is an important articulation of the breadth of authority that the HISA will have on July 1, 2022, and the HISA clearly preempts any relevant activities of the previous individual state racing commissions.
The Baffert situation
I would like to turn now to the five failed drug tests that Bob Baffert horses had from Justify, going back to his victory in the Santa Anita Derby in 2018, through the Medina Spirit and the Kentucky Derby.
After winning the Santa Anita Derby, the California Horseracing Board (CHRB) submitted the test for the winner to University of California, Davis, on April 10, 2018. On April 18, the lab notified the CHRB that Justify had tested positive for scopolamine with an excessive 300 nanograms per milliliter found.
Scopolamine can act as a bronchodilator to clear a horse’s airway and optimize a horse’s heart rate, making the horse more efficient. It should be noted that scopolamine can be found in jimson weed and “environmental contamination” has been used as a defense for a scopolamine positive.
For whatever reason, Baffert was not notified of the scopolamine positive until April 26, only nine days before the Kentucky Derby. He asked for a blind sample, which was sent to the lab on May 1 and was returned on May 8, three days after Justify won the Derby. The UC Davis lab confirmed the positive test.
The issue now was that, if Justify was disqualified from the Santa Anita Derby, he would not have had enough points to run in the Kentucky Derby. Finally, on August 23, 2018, four months after Justify’s failed test in the Santa Anita Derby, the CHRB convened an executive session meeting and unanimously voted not to proceed with the case against Baffert.
This information would never have been reported without the brilliant effort and writing of Joe Drape in the New York Times of September 11, 2019.
The next incidence of a Baffert positive test was in May 2020 at Oaklawn Park, when Charlatan won the Arkansas Derby and Gamine an allowance race. Both horses tested positive for the local anesthetic lidocaine, and the Oaklawn stewards disqualified them. The guideline for a permitted level of lidocaine in Arkansas is 20 picograms per milliliter. Gamine tested at 185 picograms and Charlatan at 46, both substantially above the legal limit.
The interesting assertion that Baffert and his lawyers made was that the assistant trainer, Jimmy Barnes, had a Salonpas patch containing lidocaine on his body. It is important to note that Barnes is not just any assistant trainer. He had met Baffert 22 years earlier, when his wife Dana (since retired) was Baffert’s top exercise rider. Barnes has traveled to Dubai, Belmont Park, Saratoga, Churchill Downs, Monmouth Park and any other track where Baffert has run important horses. He is a knowledgeable trainer in his own right. It is difficult for me to accept his behavior would result in contamination of any sort.
In April 2021, Baffert and his lawyers had a hearing with the Arkansas Racing Commission. Team Baffert argued that the lidocaine patch on Barnes’s body had somehow come in contact with both horses. The Commission reduced Baffert’s fine to $10,000, restored the horses’ placings and purse money and overturned the suspension.
Trainer’s responsibility
First, I do not believe that there should be any contamination of any sort as it is the trainer’s responsibility to keep the horse safe and out of harm’s way. I certainly have not heard of any Olympic athlete in swimming, track and field or cycling having a high drug test that was ignored due to contamination. I would suspect that USADA does not accept contamination in any of its protocols.
In July 2020 at Del Mar, a Baffert claiming horse, Merneith, tested positive for dextrorphan. Baffert argued that one of his employees had contaminated a horse in a stall as the employee was taking cough syrup and subsequently urinated in the horse’s stall. That hay was subsequently eaten by the horse, causing the positive.
Once again, even if that assertion was true, why would the behavior of the groom not be governed under the trainer’s responsibility rule. I truly hope that USADA has or will develop a strong policy in its current businesses regarding any form of contamination by an unknown or third party.
Gamine appeared again in September 2020, finishing third in the Kentucky Oaks. The filly tested positive for betamethasone, the same corticosteroid that was found in Medina Spirit. The positive test was not contested by Team Baffert and Merneith was placed last by the stewards.
Levels not debatable
Finally, regarding the positive tests of Medina Spirit, there are two troubling positions for me that Baffert and his legal team have taken.
First, Team Baffert is strongly arguing that how betamethasone found its way into Medina Spirit is critical from both a regulatory and public relations standpoint. Team Baffert is making a distinction between whether the betamethasone was injected in the horse or applied in the form of a topical cream. Jennifer Wolsing, general counsel for the Kentucky Horse Racing Commission, has stated the betamethasone prohibition is “not differentiated” between creams and injections in the regulator’s list of prohibited substances.
Second, Team Baffert continues to make the point in this and in previous hearings that the level of the illegal drug(s) often does not reach the level of performance enhancement. Yet these levels are written into the guidelines of each drug and not debatable in establishing guilt or innocence by a racing participant.
I have singled out Bob Baffert not to pile on, but rather to demonstrate that the state-by-state regulatory racing commissions vary tremendously both in their rules and practices, which do not serve the trainers, racetracks and all industry participants well.
It is most encouraging that the HISA directors, chaired by Charlie Sheeler, have been appointed and started work. And the two HISA committees, Racetrack Safety and Anti-Doping and Medication Control, have been selected and work is underway to develop a working relationship with USADA.