Letter To The Editor: Actions Detrimental Or An Inconvenient Truth?

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by Brent J Malmstrom

“Leave no authority existing not responsible to the people.”-Thomas Jefferson

I was made aware The Jockey Club published an article “HISA is Necessary” which appears to be a direct response to my letter to the Editor Actions Detrimental.

I would like to thank all the various industry participants who have reached out in support of what I shared and the concerns which were raised.

The Jockey Club is a breed registry. The author perhaps without knowing has acted as an agent for the Authority and or the person most knowledgeable and your commentary can only be interpreted as an on-the-record factual basis.

A more appropriate response could have been, `we appreciate you raising your concerns, we appreciate your perspective as an owner, and we acknowledge despite best intentions things haven't always worked the way they are intended.' This could have been used as a learning moment for the betterment of the collective. Or, they could have said, `we disagree with your point of view.' The question remains: how many industry representatives need to come forward before constructive dialogue is allowed to occur?

According to the author, I should be ashamed for raising concerns regarding the implementation of this Act and the potential material consequences the integration represents to the industry and the participants. A little reminder that we live by the rule of law and protections where the government can't deprive any person of “life, liberty, or property without due process.”

Contrary to the representation raised by the author, I am not a party to or affiliated with any lawsuits pertaining to this integration and adoption. Also, as a point of fact, it wasn't my horse in question, as the author suggests. I just happen to own around 30 other racehorses. Also, to date there has been no email or communications from HISA or HIWU regarding what happens when one of your covered persons (i.e. your trainer) has been provisionally suspended.

The author suggests that it is not possible to have any contamination event and the presumptive position would be anyone taking any of these types of medications under the general care of their doctor should not be training and or be involved in this sport as the tolerance level is zero. (Trainers, owners, grooms, track employees, racing officials, anyone…)

We should recap the significant events since my article was published. The Authority changed the Provisional Suspension rule to not to take effect until the “B” sample results were complete.  I believe they should have taken it one step further and waited until the provisional hearing; that would seem appropriate. Allow the labs to confirm the results and allow due process to the parties involved.

With regards to my statements about the permissibility of the medication in question, “Metformin”. I drew those statements from publicly available information: USADA;, WADA;, FEI (indeed, FEI even acknowledges some substances “are more likely to have been ingested by Horses for a purpose other than the enhancement of sport performance, for example, through a contaminated food substance); ARCI (see links below).

Why is all of this important?  There is a subset of medication that is common within our environment and the list of Atypical Findings as well as the “Banned vs Controlled/Prohibited” lists should continue to be reviewed. At issue is the difference in how these determinations were made and how they are treated (a monetary fine, points on your record, a suspension). Gone are the days of a fine and a few days suspension – we are now saying you could be out of the industry for months and or years for a violation from a positive caused by an environmental transfer. Why when these concerns are raised, must the attitude be, “you are anti-HISA” vs “it's in everyone's best interest to get this correct?”

What hasn't been discussed is what happens when the Authority doesn't follow their stated protocols i.e. Timelines for test samples, chain of custody of the samples (split samples not traveling together to the second lab), confirming the testing procedures are followed. Just because they say this happens doesn't necessary reflect what happens, unless the author is suggesting they will attest and stand behind this certification under penalty of perjury that everything is correct all the time. Remember the industry participants are paying four to five times more for these tests as it has been stated the costs were negotiated to ensure speed and accuracy.

There continues to be a significant lag when test results are returned vs. when horses competed. We continue to see issues related to results vs. claimed horses. In several examples the horse may have changed hands several times before an original test of an altered chemical finding was produced. The pervasive question continues to be now what?

The request from HISA and now The Jockey Club is to allow time for the failures to be corrected. The issues raised by my article were about the material impacts an altered chemical result could have on someone (any trainer). The suspension, the loss of income, the brand reputation risk of being labeled a cheater before any due process. Your asset being stranded and or impaired without any remedy and the inevitable issue of defending yourself with the IRS Section 185 the “Hobby Loss rule” just to name a few. Unattended consequences are particularly concerning as most if not all of this could have been predicted had the execution phase of this been well thought -out.

The Jockey Club statement asks us to give the Authority time because “this is a start-up,” as though we should just write a check and let the Authority learn the business and just trust them, they will get it correct. The inconvenient truth is a vast majority of this industry can't afford the pervasive “let me swing until I get it right” mentality.

The response simply ignored another concern raised the need for disclosures. Disclosures are the mechanism in place to ensure concerns raised are answered. To reiterate HISA representatives, continue to make representations about transparency and ethical conduct. I am struggling with this, given they make little to no disclosures around their overall operations. They are operating with an unchallenged budget with no certifications or disclosures. Perhaps this Start-up should understand the shareholder value proposition be accountable and be transparent to the collective.

If the talking point is correct there was collaborative engagement with all the various industry representatives, then why the roll-out challenges and the need for time to get this correct? Contrary to what The Jockey Club writer stated, it is the big-picture considerations which prompted my article. As I shared before, unless there can be balanced enforcement that affords equal protections to all parties we will continue to lack the necessary progress to move the industry forward.

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