Rule School

USTA officials school prepares the next set of regulators

During my senior year at Rutgers University in southern New Jersey, a student teacher working on her master’s degree suggested I pursue the same path. As an English major, it had some appeal, as did student teaching.

After some thought, I realized my heart was elsewhere: Try to land a job as a newspaper reporter or as a communications person for a racetrack. Either way, I would continue to write and be free from the classroom after 17 consecutive years.

The following 29 years as a journalist and editor—all but six covering the pari-mutuel racing industry—taught me far more than I ever could have learned in a classroom. So why, last year, did I decide to go back to school, even it was for only a week?

A job change to communications rather than full-time journalism in racing in 2016 coupled with a return to my roots in the Mid-Atlantic region allowed for schedule flexibility I hadn’t had for at least 20 years. So when I read a notification about a harness racing officials’ school at The Meadows last November, I was intrigued.

After watching who knows how many races, both Thoroughbred and Standardbred, I thought it would be interesting to get first-hand knowledge of what judges in harness racing do, and why they do it, rather than just criticize a disqualification or lack of one. It seemed like a good opportunity as well to look closely at a rule book, and then see how rules are enforced or interpreted.

Other aspects of the accreditation school, hosted by the USTA in conjunction with the Racing Officials Accreditation Program (ROAP), appealed to me greatly after having spent 20-plus years writing about them: medication, drug testing, equine welfare, legal issues, and regulatory structure. Understandably, there were some in the class of more than 25 people—many with experience in the judges’ booth or racing office—who didn’t share that interest.

USTA officials who devised the curriculum and selected the guest speakers clearly took a bigger-picture approach rather than limiting the course to voided claims, pylons violations, and how a purse is paid in the event of a no-contest. The USTA book of rules and regulations figured prominently in the class, but so did the need for racing officials to be aware of chain of custody of blood and urine samples, how medication cases are adjudicated, and protection of due process.

Uniformity—or at least a desire for it in rulemaking—shadowed the week’s activities. Though USTA rules are the foundation for all harness racing jurisdictions, there are shades of gray from state to state. The USTA, harness racing’s breed registry, is a private organization; it can take away a member’s license for USTA rule violations, but that doesn’t mean a state will follow suit.

“Being a private association–as the USTA is–can work to industry’s benefit,” said Kent “Chip” Hastings, a longtime racing official who retired at the end of 2017 after serving as manager of rules, regulations and related matters for the USTA. “We can set our own rules and qualifications. If someone has a conditional license, it’s a big red flag. [Judges in each state] better start digging deeper to find out why.

“Whenever we issue rulings, we hope racing commissions take notice and uphold them.”

“We’re large enough to make a difference and small enough to be mobile,” said T.C. Lane, director of registry and member services for the USTA. “We may not regulate, but we will facilitate.”

Another key point was made during the first-day introduction to the officials school, that being the need for common sense in officiating and having a willingness to listen. Even if every rule in every jurisdiction was the same, rulings from the judges may differ. That’s the human element in any sport.

“Your office should be open to anyone who wants to come in to talk about anything,” Hastings said. “You’re there to enforce rules and regulations fairly and judiciously. Use the power of the rule book—but that doesn’t mean you need to penalize everyone who comes before you. Use your discretion.

“As a judge, you need to have transparency. If you think there may have been a violation in a race, don’t hesitate to put up the inquiry sign. You can always take it down. If there is doubt, don’t place the horse. You’ll usually make the right decision.”

The racing public’s view of judges’ duties is generally limited to what goes on in a race and, if there is an incident, how the judges rule. In other words, the less they hear from the judges, the better.

The USTA school included “field trips,” not only to the judges’ stand, but to their office on the backstretch one morning. It provided a look into their other responsibilities of major importance to a daily racing program.

Data requires integrity, too.

Is the ownership of every horse entered correct for program purposes? Does a horse not meet the conditions of a race in which it was entered? If a race is split into divisions, was proper protocol followed for the draw?

The review process has been streamlined dramatically in recent years given the USTA’s eTrack and Online Entry systems. About 85 percent of entries at all tracks in the United States are made online rather than by telephone. Use of a computerized, random post-draw system is limited, but expected to grow. And the USTA fines and suspensions (FAS) system allows penalty records to be reviewed, entered or edited online or via mobile device and allows for rulings to be submitted quickly so judges and regulators have the latest information.

Judges (one presiding judge and two associate judges) at each track are assigned specific duties. At The Meadows, they all need to know how to perform the necessary functions, but for continuity they generally handle the same duties each day; protocol varies from track to track. They even check the official chart after each race to ensure the information is correct.

Aside from the day-to-day racing-specific duties, Hastings said judges have a bigger responsibility to the industry, and much of it is predicated on communication–not only with trainers and drivers at each track, but with racing regulators and attorneys general in an effort to provide them with a better understanding of the challenges of presiding over race meets.

The USTA rule book includes a rather broad definition of judges’ authority, including this: “Decide any differences between parties to the race, or any contingent matter which shall arise, such as are not otherwise provided for in these rules.”

That’s a heavy load that goes beyond the black-and-white of a rule book. And that’s why it can be a thankless job, especially given the explosion of social media, where getting the facts first often doesn’t matter.

“I realize medication issues are like learning a foreign language.”

So said Dr. Mary Scollay, who serves as equine medical director for the Kentucky Horse Racing Commission. She spent almost a full day outlining medication rules and testing procedures as well as adherence to equine health protocols.

The question was raised whether judges need any information beyond what is required for them to issue the initial ruling in such cases. The USTA took the position that medication rules and testing in particular are under a microscope in the industry, so the more information, the better.

“The rationale for medication to be part of the course is that it’s a barometer,” Lane said. “(Racing officials) need to have a level of competency. I think you need to recognize trends and know the (testing) levels. I don’t think it’s beneficial for us to be oblivious to the content.”

In regard to the regulation of foreign substances in racing, Scollay said it’s predicated on fairness and safety for participants, the welfare of the horse, and public expectation that has changed over the decades.

“There has been an evolution of how people expect us to care for horses,” she said. “Whether you believe that or not, you have to respond to it. I don’t ever want a rule that hurts a horse. We want to foster competition between healthy horses.”

Scollay said it’s worth noting that regulations in human athletics only address performance-enhancing substances, and that human sports regularly provide therapeutic use exemptions. She said horse racing doesn’t—and shouldn’t—have that luxury, and takes its responsibility in medication rules and testing seriously.

“Therapeutic use exemptions are fraught with peril for integrity,” Scollay said. “Therapeutic medications can affect performance and can be used non-therapeutically. The intent of use is an issue.

“The majority of horsemen are compliant and want the rules enforced. It’s not about enabling use of as many meds as possible as close to post time as possible. Poor medication control (on the part of horsemen) trumps cheating 90 percent of the time. It’s not an overt attempt to get one over, but it can affect performance.”

As for actual testing and threshold levels, Scollay outlined a rather complex statistical analysis—standard deviation and frequency of level detection—she said has built-in protections for horsemen who follow recommended withdrawal times for therapeutic medications.

“The statistical calculation is designed to err on the side of the trainer,” Scollay said. “It’s a thoughtful process that does contain a substantial margin of safety.”

Scollay recommended that officials maintain and review all test results, even though most don’t result in a positive. Such a database can detect patterns in treatment and also be valuable in identifying threats to equine health and welfare, she said.

In regard to health and welfare, judges and stewards can be the gatekeepers, Scollay said.

For instance, she noted the need for officials to ensure that Coggins tests for equine infectious anemia are up to date and that health certificates for all horses are properly completed. She said racing officials should work with veterinarians to develop policies that can protect a racing colony from an infectious disease outbreak.

And if there is an outbreak?

“Know how to handle a quarantine,” Scollay said. “Develop a relationship with the state veterinarian. Other jurisdictions will be watching and will ban shippers. People need to know it is being handled the right way.

“Part of your job is managing the frenzy when something happens that people don’t understand.”

The same goes for accidents on the racetrack. Scollay suggested having regulatory vets work with private vets so they understand their roles in the event of an emergency.

“I cannot emphasize enough the importance of having a plan in advance,” she said. “Racetracks don’t like to spend money, so you may have to explain to them that it’s worth the costs. If you need to initiate change, you’ve got to motivate the racing association.

“And be aware of social media and the public’s response to equine injury. You have to have a plan in place before something happens.”

Dr. Jennifer Durenberger, currently the chief veterinarian for the New York Racing Association and former director of racing for the Massachusetts Gaming Commission, had some advice for prospective judges.

“When you become a judge, people ask questions about decisions,” she said. “Don’t fall into a trap without knowledge of a rule.

“If you’re writing rules, words really matter. As much as we want it to be black and white, it’s not. Differing viewpoints are always welcome.

“The legal framework is all local. Applications can differ by jurisdiction and change the outcome. It can be the same rule, but with different case law.

“Facts and circumstances will drive rules and the outcomes.”

When she was in Massachusetts, Durenberger led the effort for adoption of the National Uniform Medication Program in the state, and later served as a steward at Canterbury Park in Minnesota. She spent one day of the USTA officials’ school discussing the legal and rulemaking framework as well as awareness of equine welfare and public perception.

The regulatory hierarchy is as follows: state statute is at the top, followed by administrative rules from a regulatory agency, and then house rules, should racetracks choose to implement them. No rules, however, can conflict with state statute.

The National Uniform Medication Program includes a uniform penalty structure that uses points per violation to penalize repeat offenders. Durenberger’s presentation on law, however, touched on the importance of aggravating and mitigating factors, both of which are factored into the uniform penalty system.

She said evidence of intent, a history of multiple offenses, and evidence of carelessness can be aggravating factors when judges or stewards consider penalties in a case, while evidence a mistake was made or a clean record can be mitigating factors.

Recent medication cases in Thoroughbred racing have focused on trainer responsibility, primarily the absolute insurer rule, which Durenberger said has been upheld at the federal district court of appeals level—one step below the U.S. Supreme Court. The bottom line, she said, no matter the model, is that when there is a positive finding the trainer is ultimately held responsible.

Durenberger also stressed the need for racing officials in all cases to honor due process, which is protected under two amendments in the U.S. Constitution: A person must be given notice and have the opportunity to be heard.

“Occupational licenses are a privilege, not a right, and there are certain qualifications,” she said. “Once granted, a licensee has a property right in that license. The burden is on the licensee to show qualification, and burden is on the state to show why the license may be revoked.

“If you mess up the due process part, it’s a do-over. There should be good guidance by stewards and judges on due process. Don’t ever take it personally if someone appeals a decision.”

On the topic of equine welfare, Durenberger believes the racing industry has to be constantly vigilant, not only for the benefit of horses, but for its continued livelihood.

It’s no secret animal rights’ organizations have played a major role in the elimination of Greyhound racing in many states, and that a few are now involved—at the Thoroughbred industry’s invitation—in making recommendations on future policy. Durenberger didn’t go down that road, but she presented a passionate overview of how societal changes can impact horse racing.

“I believe a lot of our racing development funds will be threatened by this issue,” she said. “The emotion around this issue is overflowing, and we don’t get to make all the calls at the legislative level.

“Ethics are driven by societal values. There is an increasing use of legal constructs for animals. If we don’t provide for welfare, will it be next as being ruled illegal? Sixty percent of consumers are more concerned with animal welfare than they were five years ago, and racing is lumped into an animal-use group.

“Welfare decisions are social, not scientific. Science can’t determine the level of risk that is acceptable. Racing is in a minority position because it is grounded in an animal-use model and makes money from horses. But it also highlights an emotional connection to equine athletes, so there is an increased duty of care or ethical responsibility.

“We see this differently than other folks. They don’t understand the way we’ve done things. The perception of most people is different than the perception we have, but we have to listen and we have to respond.”

There were plenty of takeaways from the week at The Meadows, and if you polled everyone who participated, they wouldn’t be uniform.

That’s a good thing. Individuals who officiate horse races may know the rules and how to enforce them, but as was noted several times during the week, there is such a thing as discretion.

Continuing education is important, not only to keep up with regulatory changes and other developments in the industry, but to share experiences and learn from each other. For the most part, I believe the school provided that opportunity.

I did get the impression, however, that one learns how to officiate races by regularly officiating races. A rule book can’t offer hands-on experience of dealing with the many scenarios that can unfold in a horse race.

As for uniformity in rules in all jurisdictions, I’ve seen enough progress on medication regulations and drug testing standards—a very big lift—to believe it’s certainly possible for rules on use of the whip, kicking, and pylons violations to be standard from track to track and state to state in harness racing. The industry doesn’t need a commissioner to do that. It’s just common sense.

by Tom LaMarra

To see inside the March 2018 issue of Hoof Beats magazine, click here

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