Proposed Legislation: A Primer

By T.D. Thornton

 
The proposed Thoroughbred Horseracing Anti-Doping Organization (THADO) legislation was met with industry support on Friday, but the announcement of a plan for sweeping federal oversight of the sport's medication oversight also raised numerous questions. 
 
To help fill in some of the blanks, click here for a condensed version of a document provided by the staff of Congressman Paul Tonko (D-NY), the sponsor of the proposed bill, detailing how the medication reform legislation is expected to affect the Thoroughbred industry.

What is THADO? 
THADO will be an independent anti-doping non-profit organization with responsibility for developing and maintaining an anti-doping program for Covered Horses, Covered Persons, and Covered Horse Races. 

THADO will have exclusive jurisdiction for anti-doping matters for all Covered Horses, Covered Persons and Covered Horse Races. 

Who will create and oversee THADO? 
The organization will be created by the United States Anti-Doping Agency (USADA). 

THADO will have 11 board members including: The USADA CEO, five USADA board members and five “at large” directors appointed by USADA from nominees presented by the Thoroughbred Industry Representatives. The Thoroughbred Industry Representatives will identify nominees, subject to certain conflict of interest limitations. 

What powers will THADO have? 
THADO will have wide latitude to develop sanctions for anti-doping rule violations with consultation with Thoroughbred Industry Representatives and the public. 

THADO shall establish standing advisory and technical committees comprised of qualified representatives from horse racing industry constituencies to assist in establishing and administering the anti-doping program. 

THADO will have the same investigatory powers as the state racing commissions have in their states on anti-doping matters. 

THADO will develop (with notice to and comment from the Thoroughbred industry) and administrate the anti-doping program for all Covered Horses, Covered Persons and Covered Horse Races. 

The anti-doping program will consist of: (a) a uniform set of anti-doping rules; (b) lists of permitted and prohibited substances and methods; (c) a process for sample collection and analysis; (d) test distribution planning; (e) in-and out-of-competition testing programs; (f) investigations; (g) management; (h) lab accreditation; (i) hearings; and (j) sanctions. 

Will the industry have a say in THADO's establishment? 
It is mandatory that THADO provide the industry and public with notice and an opportunity to comment. 

Assuming passage in Congress, when would THADO take effect? 
THADO is scheduled to take effect on January 1, 2017. 

Do state racing commissions, tracks and horsemen have to participate in THADO? 
The jurisdiction and authority of THADO and compliance with the Interstate Horseracing Act of 1978 are imposed as conditions upon the privilege to accept, receive or transmit wagers on Covered Horse Races. 

THADO may enter into agreements with state racing commissions to implement any of the components of the THADO anti-doping program. States and THADO have to cooperate and share information in the investigation of violation of THADO rules. 

Participation by Covered Persons in Covered Horse Races constitutes their agreement to be bound by the THADO anti-doping program. 

How will THADO be funded? 
THADO will receive no federal funding. The funds necessary for the establishment and administration of THADO will be paid entirely by the Thoroughbred racing industry. Initial funding will be provided by loans and donations to THADO. 

Prior to Nov. 1 of each year, THADO will notify each racing commission of the estimated amount of anti-doping program-related funding required per starter for the coming year (and to cover previous years' shortfalls) based upon the THADO budget for the upcoming year. 

A two-thirds vote of the THADO board (i.e., at least two industry nominated USADA appointees will have vote in favor) will be necessary to approve the initial THADO budget as well as any subsequent budget that is over 5% of the previous year's total. 

By the 20th day of each month, each state racing commission will pay THADO amounts based on that state's number of starts run during the previous month. Each state racing commission will determine the method by which the funds will be collected; provided that in no event will the funds come from an increase in takeout. 

What standards will THADO be based on? 
In developing the anti-doping program, THADO will take into consideration international anti-doping standards. 

How will the drug classification system work? 
THADO will develop, maintain, and publish lists of permitted and prohibited substances and methods. The initial lists (subject to immediate change by THADO) will include those identified as Class 1, 2, 3 and 4 drugs by the ARCI Uniform Classification Guidelines for Foreign Substances in addition to those prohibited by the World Anti-Doping Agency, with exceptions for those permitted in the ARCI Controlled Therapeutic Medication Schedule. 

The list of permitted and prohibited substances and methods will be developed after taking into consideration international anti-doping standards and after consultation with Thoroughbred Industry Representatives and the public. 

What types of penalties will THADO be able to impose on individual violators? 
THADO will have power to impose strict liability for violators, with possible lifetime bans. 

What will THADO not do? 
THADO is not a United States government agent or agency. 

THADO will not be construed to modify, impair or restrict the operation or effectiveness of state and federal criminal laws or statutes including: Consents or approvals under the IHA, criminal conduct by Covered Persons, Thoroughbred racing matters unrelated to anti-doping and the use of medication in human participants in Covered Horse Races. 

THADO will not have the right to impose criminal sanctions. 

In addition, the bill that creates THADO does not eliminate or modify any of the consents, agreements or approvals required by the Interstate Horseracing Act of 1978 (IHA). 

Are there mechanisms built into the proposed law to dissolve THADO in the future? 
It would take a two-thirds majority vote of the board to dissolve THADO (i.e., at least two industry nominated USADA appointees will have to vote in favor of dissolution). 

What if USADA wanted to end its involvement in THADO? 
In the event that USADA withdraws from participation in THADO, the remaining members of the THADO board will select new board members to replace the former USADA board members, subject to the above-referenced conflict-of-interest limitations. 

What are definitions of key THADO terms? 
“Covered Horse” means all Thoroughbred horses which participate in races which are subject of interstate off-track wagers. 

“Covered Persons” includes all trainers, owners, veterinarians, and the agents, employees and support personnel involved in the care, training, or racing of Covered Horses. 

“Covered Horse Races” includes all Thoroughbred horserace's that are the subject of interstate off-track wagers. 

“Thoroughbred Industry Representatives” identifies at least 12 Thoroughbred industry entities that will provide both nominations of candidates for director positions with the THADO board of directors and guidance to THADO on a variety of anti-doping matters, including in the creation of the THADO anti-doping program.