How well do you know the landscape of therapeutic overages?
Pay attention, class, and put down your smartphones. We are about to talk about the intersection of optics and racing regulation, and there will be a quiz at the end.
You are about to hear the story of five post-race positives, taken straight from the USTA “Fines & Suspensions” bulletins Nov. 12, 2021, and Nov. 19, 2021, respectively. The names of those involved probably will be familiar to you. You will also be provided with expert testimony and some context derived from two other cases, both from Thoroughbred racing. Let us begin.
Here are the facts of the cases as we currently know them. On Thursday, Sept. 23, 2021, at the Delaware County Fairgrounds in Delaware, Ohio, horses trained by Doyle Bross (Mj’slibertyvalance), Brian Brown (Gulf Shores), Julie Miller (Sunny Crockett), Bret Schwartz (Fluff Yeahh) and Åke Svanstedt (Captain Cowboy) each finished first in races on the Little Brown Jug undercard. Each subsequently tested positive for the presence of dexamethasone in their bloodstreams at levels above the regulatory threshold of five picograms (a picogram being one-trillionth of a gram) per milliliter of plasma. Gulf Shores’ reading was 63 pg/mL, Sunny Crockett’s test showed 67 pg/mL and Captain Cowboy’s level was 68 pg/mL. The readings for Mj’slibertyvalance and Fluff Yeahh were lower, at 43 pg/mL and 16 pg/mL, respectively. Each test has a margin of error of one or two picograms in either direction.
Dexamethasone is a commonly used anti-inflammatory used therapeutically in horses to reduce mild swelling in the distal limbs, and also to treat allergies. It is listed as a Class 4 drug on the Association of Racing Commissioners (ARCI) Uniform Classification of Foreign Substances. According to the ARCI, Class 4 comprises “. . . therapeutic medications that would be expected to have less potential to affect performance” than those in Classes 1, 2, and 3.
The test readings ranged from three to more than 15 times the legal limit. Each trainer has been assessed a $1,000 fine, and the purses earned by their horses were ordered to be redistributed. All have appealed. And that’s where things start to get a little complicated.
On Dec. 3, 2020, Dr. Clara Fenger, a member of the USTA-funded Harness Racing Medication Collaborative and an expert in equine exercise physiology, made a presentation at the ARCI’s International Model Rules Committee meeting in New Orleans. In it, she described some unexpectedly high serum concentration levels found in experimental horses that were demonstrated to be caused by environmental contamination, not by administration.
“Among the biggest environmental substance offenders are dexamethasone and betamethasone,” she said.
Dr. Fenger’s research informed her recommendation that a threshold of five pg/mL, but no more than 100 pg/mL, should trigger a warning, and not a penalty, due to the lack of any pharmacological effect. Put another way, the five pg/mL limit, while attractive to those urging the sport to “get tough on drugs,” doesn’t account for environmental positives, and doesn’t provide any more protection against a possible pharmacological effect than does a limit of 100 pg/mL.
Her proposal was rejected.
It is important to note that the five pg/ML threshold advocated by the Racing Medication & Testing Consortium (RMTC) and adopted by several racing states, including Ohio, is based neither on a published scientific paper nor upon a study with data that has been made available for peer review. By contrast, Dr. Fenger’s recommendation was based upon research that satisfies both conditions.
A little more than seven years ago, Hall of Fame Thoroughbred trainer Todd Pletcher sent out a horse named Princess of Sylmar to a second-place finish in the 2014 Delaware Handicap at Delaware Park. She subsequently tested positive for betamethasone. Back then, the rules stipulated that the drug was permitted up to a threshold of 10 pg/mL, a limit recommended by the ARCI based upon what they said was an “RMTC study.”
Pletcher steadfastly denied that Princess of Sylmar had been given betamethasone and engaged legal counsel and fought back against the ruling. His attorney, Karen Murphy, repeatedly requested from RMTC the study supporting the rule, but she said in a Racing Biz story a year later that “they would not produce it because of confidentiality agreements. The science could not be revealed to defend the cutoff that created the rule violation. . . . When you try to get the key piece, which is the science, you can’t get it.” In 2015, Delaware exercised prosecutorial discretion in dropping the case.
Sources close to the Ohio matter say that the quintet adamantly deny that their horses were treated with dexamethasone in the run-up to Jug Day. Like Pletcher, trainers Brown, Miller and Svanstedt have been highly successful on the national and international stage and presumably have access to the wherewithal needed for a protracted battle. One of the horses in question, Captain Cowboy, is co-owned by Jeff Gural, the owner of the Meadowlands and chairman of American Racing & Entertainment, and an outspoken advocate for clean racing. A legal fight seems inevitable.
This puts the Ohio State Racing Commission, which undoubtedly acted in an effort to protect the integrity of racing, in a particularly uncomfortable position. Tests revealed the presence of medication above the legal limits prescribed by Ohio racing laws. By calling the positives, they likely now will have to defend the science behind the rule, a rule that a growing number—including the USTA believe is a house built upon a foundation of sand.
If, on the other hand, the Ohio commission had chosen to exercise discretion and not taken administrative action upon Bross, Brown, Miller, Schwartz and Svanstedt, then a repeat of the Justify/Santa Anita Derby scenario of 2018 was likely. In that instance, the California Horse Racing Board (CHRB) chose not to act on a scopolamine positive incurred by the Bob Baffert-trained Justify after that horse’s victory in the Santa Anita Derby. Justify went on to win the Triple Crown and the CHRB, after taking heavy and relentless public criticism for its inaction when the positive came to light, is now embroiled in a high-profile lawsuit initiated by the owner of the Santa Anita Derby second-place horse. On Dec. 10, 2021, a Los Angeles County Superior Court judge ruled that the legal action could go forward, and a trial is expected to occur in the new year.
With all that in mind, please answer the following questions in the time remaining. (I never said this class would be easy.)
- Is the primary job of racing regulators to protect the horse, protect the betting and racing public, protect the innocent, or all of the above? Are there times when those goals might conflict? If so, can you provide examples?
- Should science be at the foundation of every racing medication rule, or are there times when optics (i.e., how the rule is perceived) should drive policy? If so, when?
Responses should be sent electronically to email@example.com. All submissions will be reviewed, and feedback is guaranteed, provided that you sign your name. Extra credit will be awarded to any student who can tell me what the HISA therapeutic schedule will look like, and whether the thresholds will lean more heavily on science or on optics.
One more thing. Happy New Year!
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 firstname.lastname@example.org.