FTC Affirms Wong Suspension and Fine, Case Heads to Federal Court

Jonathan Wong | Benoit

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The Federal Trade Commission (FTC) has affirmed an earlier Horseracing Integrity and Safety Authority (HISA) arbitration panel ruling against trainer Jonathan Wong, suspending him for two years and fining him $25,000 for a 2023 post-race metformin positive. Metformin is a type 2 diabetes drug that HISA has classified as a banned substance.

The next step in the appeals process would be a request for review by the FTC of the FTC administrative law judge's decision, according to a Horseracing Integrity and Safety Unit (HIWU) spokesperson.

Wong will instead take the case to federal court bypassing that process, according to the trainer's long-time owner, Brent Malmstrom. This would make it the first HISA-related medication violation case to work its way up to the federal court level.

“If anyone thinks I have enjoyed spending over $510,000 litigating this, they would be mistaken, but to think we will stop now is misguided. I look forward to our ability to force discovery, take depositions, force accountability, and allow this case to be properly adjudicated,” wrote Malmstrom.

In his written ruling dated April 22, FTC chief administrative law judge D. Michael Chappell agreed with the plaintiffs that HISA had departed from the anti-doping medication control (ADMC) program's standards or protocol in key instances.

Nevertheless, Chappell determined that “there is no basis presented by Appellant to support a conclusion that the resulting sanctions were 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”

HISA and the Horseracing Integrity and Welfare Unit (HIWU) had no comment on the FTC decision.

Though banned from operating in jurisdictions that fall under HISA's authority, Wong operates a stable out of Evangeline Downs, in Louisiana, a state that currently falls outside of HISA legal purview.

The ruling marks the latest twist in a case involving a drug that appears to be playing an out-sized role in the organization's anti-doping crusade.

Metformin ranks as the nation's third-most-prescribed human medicine, according to the consumer healthcare website Healthgrades, with more 20 million patients taking it. As a banned substance under HISA, a metformin positive comes with a possible maximum two-year suspension and $25,000 fine.

The Wong-trainee Heaven and Earth (Gormley) broke her maiden at Indiana Grand on June 1 but subsequently tested positive for metformin.

As a matter of protocol at that time, HIWU initially provisionally suspended Wong at the beginning of June when the A sample returned a positive finding for Metformin.

The HISA Authority subsequently announced that it had modified the rules surrounding provisional suspensions. Under the revised provisions, responsible parties who request B Sample confirmation following a positive test for a banned substance would no longer face a provisional suspension until the B sample findings are returned.

In Wong's case, he was notified on Aug. 9 that the B Sample confirmed the Metformin positive.

Though Wong was technically permitted to return to training for a brief period while the B sample was being processed, he explained at the time that his owners did not wish to transfer the horses back with the B Sample results expected imminently, and effectively has not trained since July 2.

Earlier this year, a HISA arbitration panel imposed on Wong the maximum possible sentence for such a violation. The two-year period of ineligibility retroactively started July 1, 2023, when Wong's initial provisional suspension was first imposed.

The panel's ruling also set the case up for review anew before the FTC.

In his appeal, Wong made several claims that the way the blood and urine samples in the case had been processed were a departure from the “rules and standards” of HISA's drug testing program, and that these departures rendered the test results “inadmissible.”

Judge Chappell agreed that some of these “departures” from the ADMC program's rules and regulations indeed occurred, including how HISA failed to “document the chain of custody” of the samples between the time of collection and shipment to Industrial Laboratories for testing.

Chappell also agreed that Brendan Heffron, lab director at the University of Illinois Chicago Illinois (UIC) where the B samples were sent for confirmation testing, failed to “decant” the urine sample according to the ADMC rules.

Chappell disagreed with the assertion that the findings did not undergo “independent review” by two certifying scientists.

Even though one of the certifying scientists conducted his review well after UIC reported its test result to HIWU in contrary to ADMC rules, “there is no evidence to support a conclusion – implied by Appellant – that UIC altered the laboratory package after Benoit's review and prior to certifying the result,” Chappell wrote.

In an unusual turn of events in the case, the Kenneth L. Maddy Equine Analytical Chemistry Laboratory at the University of California, Davis, conducted “Further Analysis” on the A blood sample sent to Industrial Laboratories, and intended to analyse what should have remained of the B urine sample processed by the Chicago lab.

Wong argued that ADMC rules required such further analysis to have been conducted by UIC—the laboratory that conducted B sample analysis—rather than by the UC Davis Lab.

Chappell rejected this argument by stating that Wong had failed to make this assertion in arbitration, and that “Appellant has failed to rebut the presumption that the analyses of the A and B samples conducted by Industrial and UIC were valid in detecting the presence of a banned substance. In this context, whether the further analysis conducted by UC Davis failed to comply with applicable testing rules is immaterial.”

In his ruling, Chappell concluded that Wong “has failed to meet his burden of establishing that the demonstrated departures from applicable testing standards or protocols could reasonably have caused the AAF. Therefore, pursuant to ADMC Rule 3122(c)-(d), the test results are presumed valid and the departures are not a defense to the possession violation.”

In his written statement, Malmstrom pointed to the parts of the judge's ruling identifying where sample processing procedures had deviated from the stipulated rules. “Better stated, HIWU can issue a fine/suspension but not follow the stated rules, leading you to that conclusion,” Malmstrom wrote.

Because of the possible severity of metformin-related sanctions and its ubiquity in the environment, the drug has been at the heart of several controversial cases that have led some to question whether HIWU is deploying too strict an enforcement approach to the drug.

In justification of its stance, HISA CEO Lisa Lazarus told the TDN earlier this year that “we do have intelligence that metformin is being used intentionally” as a performance enhancer.

According to Malmstrom, the challenge “we and every other trainer face” is the difficulty in proving the root source of adverse analytical findings, especially in ship-in scenarios.

“We have all read about the disproportionate number of tests returning from situations where the trainer shipped their horses to various locations,” Malmstrom wrote, pointing to his “letter to the editor” from last July.

“Due process isn't a scenario where some rules can be followed while others can be ignored. Under the current regulations, you can have your entire economic livelihood taken from you through no fault of your own,” Malmstrom wrote.

“Trainers are not omnipresent and can't always control everything,” he added. “Why are trainers the only ones subject to transparency? Given that environmental contaminations continue to be significant events, a better solution that shares responsibility is needed.”

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