Director’s Chair June 2023

by Joe Faraldo, USTA Chairman of the Board

On Righting a Wrong
A call for fairness in light of contaminated tests

Recently, the Standardbred Breeders and Owners Association of New Jersey (SBOANJ) circulated a letter to affected trainers who were penalized for serious Association of Racing Commissioners International (ARCI) Class 1 positive tests in 2021 and 2022. Let’s start with a little background.

Class 1 includes stimulants and depressant drugs that have the highest potential to affect the performance of a horse. These substances include opiates, synthetic opioids, psychoactive drugs, amphetamines, apomorphine (dopamine agonist), all Drug Enforcement Administration Schedule 1 substances and erythropoietin (EPO). Use of any of these Class 1 drugs triggers an ARCI Class A suspension of one to three years, and a fine of $10,00 to $25,000 or 25 percent of the purse, whichever is higher.

The accused trainers were shocked about the existence of any Class 1 drugs being in their horses and suspected something was not right. Subsequently, the New Jersey Racing Commission (NJRC) made the accused an offer that seemed too generous to be true: a mere seven-day suspension and a $1,000 fine. The tender of a slap on the wrist for such heinous charges in and of itself raised eyebrows. The NJRC’s action came in for some heavy criticism for its leniency, but was that what it was?

The trainers suspected the NJRC was perhaps aware of something undisclosed. The trainers and the SBOANJ surmised that there was contamination in Lasix ship-in stalls since those stalls seemed to be a constant in the equation—there was a pattern between those stalls and the positive tests. Then, by the time a trooper from the Hazardous Materials Response Unit (HMRU) arrived to test the Lasix ship-in stalls, they had been completely sanitized, making it much more difficult to draw any conclusion.
Luckily, the HMRU did not stop there. The trooper ventured into the spit box area where samples were taken. The conclusion: “Positive results for fentanyl, heroin and amphetamines were discovered on three buckets containing urine sample collection sticks.”

To its credit, the SBOANJ, despite being aware that the trainers had already accepted the vastly reduced offer from the NJRC and that their respective owners had already lost all purse money, nonetheless petitioned the NJRC to expunge their records of these serious allegations. To their credit, SBOANJ executive administrator Al Ochsner and president Mark Ford met with the NJRC’s executive director to ensure that every effort was made to right this wrong.

One reason for the effort is that any recorded drug positive will trigger a multiplication or enhancement of penalties if a future positive occurs—even for a lower-class substance, like bute—within a one-year period. The SBOANJ cited a 2014 case where such contamination triggered only a loss of purse with absolutely no penalty against the trainer and was asking the NJRC to reconsider the SBOANJ’s application in the nature of expungement, in whole or in part.

It is undeniable that these trainers were given an overly generous deal based upon credible evidence of a suspicious pattern between the Lasix ship-in stalls and these positives. There was no favoritism that prompted the deal. Yet, given this information, why hasn’t the NJRC expunged their records so that these trainers won’t stand to suffer enhanced penalties down the road on a much lower-class therapeutic overage?

Because of that fact, these questionable positives should not be considered in assessing additional enhanced penalties found within the year after their imposition. This is especially troubling, given the trend that some state laboratories—and eventually those same state labs working under HISA—will be calling positive tests on extremely low picogram levels on just about anything, including minuscule therapeutic overages with virtually no performance enhancement value. The danger to horsemen—and thus the industry overall—is real, not imagined.

While we could credibly credit the NJRC in granting greatly diminished penalty offers when it recognized the likelihood that these trainers were indeed innocent, by the same token, given the independently developed evidence subsequent to the positives, why should any of these innocent trainers be penalized at all? Why isn’t the NJRC at least making it abundantly clear that these rulings should not be utilized as the basis of enhanced penalties in the future, assuming outright expungement is asking for too much?

Some might say that the trainer responsibility rule precludes exoneration for these violations, but that rule creates a rebuttable presumption that the trainer—with care, custody and control of the horse—is initially deemed responsible. Is it possible to rebut the presumption?

Well, as the advocates pointed out, the presumption was rebutted in a 2014 New Jersey case of a trainer whose horse presented with a cocaine metabolite. Based upon the high probability of contamination, no suspension was imposed in that case.

Hall of Famer George Morton Levy, a lawyer and the founder of nighttime pari-mutuel harness racing, once told me that some people blindly use the trainer responsibility rule for what it is: “just a lazy way of doing one’s job.” In view of what is known here, more needs to be done in these cases for these trainers. They are not invested with the care, custody and control of the Lasix ship-in stalls or the NJRC’s spit box. It’s just my opinion, but one that may be shared by others concerned for horsemen, justice and fair play—in and for the game.

In sum, are the state’s regulators truly regulating when they just simply attempt to tag an administrative rap sheet on as many licensees as possible? Can one fault an innocent trainer from accepting an admission of guilt and relatively minor penalty when staring down the barrel of a career-ending suspension that will cost a countless amount of money to defend against?

We’ve witnessed this type of traditional mindset among certain—but not all—prosecutorial agencies around the country, and the expungement of records and commutation of sentences based upon convictions that ignored truly exculpatory evidence occurs every day in America. As the United States Supreme Court has guaranteed horsemen a constitutional due process interest in their licenses, evidence of contamination should preclude any penalty from being imposed, much less a wrongful adjudication that can be used as the basis for draconian augmentation of a penalty for a minor infraction down the road.

Drugging horses is wrong and damnable; so too are the actions of any regulator failing to recognize reality. Thankfully, some are beginning to. Hopefully, the NJRC will give the SBOANJ’s proposal its due consideration.

Joe Faraldo

The views contained in this column are those of the author alone, and do not necessarily represent the opinions or views of the United States Trotting Association. To comment on this column, email us at readerforum@ustrotting.com.