Regulators on the run

[Caradoc]

The link below is to an excellent article about the new NYSGC drug testing protocol that recently went into effect.  It exposes some of the fundamental issues involved in testing, as well as the financial and legal obstacles in taking the steps that many want the industry to take.

First, as TGJB has stated before, there is a fundamental issue of economics here, as the entire process involved in any rigorous testing regime involves the expenditure of some serious money.  Historically, racing commissions have been underfunded regulatory agencies, and therefore are in no position to impose and follow a truly serious testing system which has scientific validity.  The equipment alone is expensive.  A mass spectrometer (the machine necessary to do high-level spectrometry analysis) costs about $500K, and according to evidence revealed during the Mott case, the NYRA did not acquire one until about two years ago.  That is one significant cost, and there are many others.  

Second, the commissions are on the run as a result of some legal developments, including the Mott and Motion cases.  As pointed out in the article, the commissions have been skating for a long time, and these cases have exposed very questionable practices and equally questionable legal structures that have allowed the skating.  The first is that the very basic practices around gathering and preserving evidence that are used to fine trainers and/or deprive trainers of their licenses are in some cases shockingly inept.  The NYRA has for years been gathering blood samples in insufficient quantities, making split-testing impossible.  This has prevented a trainer to challenge a supposed overage.  In the Mott case, his vet testified that Mott instructed him to give one-third of the legal amount of Lasix, yet the test came back with a crazy result, many times the legal limit for Lasix.  When Mott tried to acquire a split sample to have an independent lab confirm to verify, only then did he learn that the NYRA did not take enough blood so that an independent lab could verify the NYRA’s findings.  

The recent Kentucky case regarding Graham Motion is a little different, but the sample taken that was the basis for his suspension was not preserved in any meaningful way but rather was stored for some period in the outriders tack room.  These are practices that will only embarrass the industry, raising issues of chain of custody, spoilage, and so on.  They suggest to any trainer who has a positive finding and the financial ability to do some investigation, a little digging will reveal a practice the racing commissions would prefer to keep private.

The commissions have been skating on the science behind some of the overage standards.  If you want to read more about that issue, here is an excellent summary of the story behind the RMTC’s questionable reliance on a study for the standard at issue in the Motion case: http://halveyonhorseracing.com/?p=4123

Still, the most significant issue coming out of the recent ruling in the Motion case is that it gives any trainer a road map to challenge the absolute insurer/trainer responsibility rules on due process grounds.  Depending on your jurisdiction, these rules have prevented a trainer from introducing exculpatory evidence in any proceeding related to a drug infraction.  Whatever the ultimate resolution in the Motion case. other states are likely to take up the issue under their state constitutions, and that is before we get a test case about whether those rules violate the Due Process Clause of the U. S. Constitution.

Any way you look at it, all these issues are complicating factors for imposing and implementing serious testing regimes.

https://www.thoroughbredracing.com/articles/drug-testing-new-york-day-reckoning-way/