By Dan Ross
As expected, these draft rules aren't full and comprehensive, and are subject to revision. Nevertheless, as currently written, they signify a fundamental revision to the way the industry is policed, including a markedly more stringent approach to medication violations.
To discuss these rules, the TDN sat down Wednesday afternoon with United States Anti-Doping Agency (USADA) CEO Travis Tygart and Dr. Tessa Muir, head of the agency's equine program.
The following is taken from a longer conversation, heavily edited for brevity and clarity.
TDN: The primary issue that stakeholders have right now is cost. Do we know how much this is going to cost? And if not, when will we know for certain?
TT: We do not have an agreement with the Authority yet [the Horseracing Integrity and Safety Authority, the broad non-profit umbrella established by the law].
What I'll say is, the industry really can't afford not to put in a good program, whether we're involved with implementing it or not. I have seen the numbers in the industry. The Breeders' Cup this last week
end, I think, announced they had $182 million in handle, which was up 5% from 2019, in large part because they had more foreign horses who were willing to enter the race because of the anti-doping protocols that they put in place. And of course, you look at Churchill Downs or some of the private groups, their revenue and market caps are off the charts.
You know, the other key point is, I'm not sure there's going to be an increase [in cost] necessarily.
Part of the obstacle right now is that the industry doesn't know how much is currently being spent on anti-doping and medication control. I think you will see some efficiencies. For example, we've got 38 different racing jurisdictions. There's a lawyer in each of those jurisdictions that's handling a case or two or more, depending on how many positives they have through the legal process. It's not going to take 38 lawyers to handle these cases by people that are trained experts to be able to do it.
TDN: Do you have a set date that you want to get the cost nailed down?
TT: Well, it's hard to cost out a program until you know what the program is going to look like, and you don't know what it's going to look like until you have the final rules.
If they're finalized as they're put out today, they're heading in the direction of something that we would be willing to stand by. [But] that's not a foregone conclusion and, listen, if they get diluted or gutted in the next several months through the ongoing process, we may not be willing to stand by them and run a program, so the cost of it wouldn't matter.
Look, we want to know sooner rather than later for all the obvious reasons.
TDN: When it comes to the hearing of violations, who will be the anti-doping stewards hearing secondary substance violations [for therapeutic substances]? Will it be the state stewards already in place?
TT: The idea is a national pool of stewards. There would be an application process, background checks, conflict of interest checks. There would be an individual steward out of that pool selected by us in the Authority–not necessarily directly appointed by state commissions–pulled out to hear an individual case or make a decision in an individual situation. And importantly, as you probably have seen, those are for minor violations.
It would be someone who has steward experience that is a lawyer–or equivalent experience–and has the utmost integrity, weighing facts and making a written decision. And obviously they're conflict free, no industry ties or immediate family that has industry ties. We're going to have an open application process when we get to that stage.
TDN: How big will that pool be?
TT: You know, we're still discussing that, but you can expect it to be a couple dozen. Part of the challenge as well is estimating the number of positives that potentially come out or other violations.
TDN: Who are the “impartial arbitrators” hearing primary substance violations [those for drugs that are always prohibited]?
TT: That's going to be a process, when we get to that stage, not unlike the steward process that I just described.
TDN: What about the administrative law judge? Who is that going to be?
TT: That's in the hands of the FTC [Federal Trade Commission]. We may be in a position to give feedback but we're not involved with that process. Now we will be the ones–assuming we bring this program on–presenting the cases, arguing the cases, or prosecuting the cases.
TDN: Will therapeutic drugs still be classified in the same alphanumeric manner, like a class 4D, for example?
TM: So, I think when you see the prohibited list, you'll see that it's fairly similar to the current list, generally speaking.
Let's take phenylbutazone, a secondary substance. That would be dealt with, generally speaking, as a minor infraction. But potentially, if there was evidence of deliberate administration to manipulate the outcome of a race, there can be aggravating circumstances that would bring it up to a major infraction.
So the list itself, as I say, is very similar to the ARCI [Association of Racing Commissioners International]'s lists. But how the process or results management works is slightly different.
TDN: What about the educational component for the horsemen themselves? When can they expect that to be rolled out?
TT: It's obviously essential to have robust and quality education efforts out there. And once the rules are final or close to final, we will start educating around them.
Keep in mind, this is the first public step in the process. Although there's been many steps up until now, there's still two rounds to go. These rules will go up on the HISA website. And then they go to the FTC, [which] will make them public. Because we don't know what the program looks like until the rules are in place, it's tough to educate around that.
I think there's three simple things to keep in mind. Number one, don't do drugs. Don't give your horses drugs. Number two, if you need a legitimate and genuine medication for a diagnosed ailment in your horse, then check the list or pick up the phone and call us or check our website. And number three, when the whereabouts program gets put in place, simply provide your whereabouts and make sure your horse is available.
TDN: There's a lot of info that you're going to have to process. What's the current state of the centralized database system?
TT: We're mapping out what the needs are going to be for taking on a new industry. And when we get to the point of knowing what the programs are, knowing what the rules are going to be, then we'll be implementing that as soon as possible.
TDN: Have you actually started the process of putting that together?
TT: We've mapped it out. The point where we have a contract to move forward, we'll be doing that.
TDN: For the integrity component, do you have an idea of how many personnel you're going to have under that? What roles they're going to be performing, how that's going to work?
TT: We're not quite there yet on exact numbers but we're hoping to get there soon. Certainly, it's going to be an extension of our current capacity, new people with the same type of expertise for federal and state law enforcement.
On our human side alone, we had close to 500 tips that came into our office last year, and each and every one of those goes through a robust analysis by our team to determine if we test off of it, if we direct research off of it, if we open up an investigation. Do we coordinate with law enforcement? That's a critical part and component of the program that we would run.
TDN: Why haven't you signed a contract yet [as the enforcement agency]?
TT: Until you know what the rules are, it's hard to finalize that. We're in a much better position now that we've received a lot of industry response. The rules are heading in the right direction. We're in negotiations. We had a meeting last week and we're hopeful that we're going to get to a point where we can either know one way or the other whether we're going to be involved.
TDN: Do you have some kind of rough idea of when you're hoping to sign on the dotted line?
TT: If I had a magic ball, it would have been two months ago, but we're just not there yet.
TDN: Regarding the safety committees and the anti-doping committees, have they actually met to make sure that the rules they're creating are harmonized?
TT: You know, that's a question for the Authority. I'll tell you, we've had to point out some inconsistencies in the initial rules that we saw out of the safety committee that we didn't see until they went public. So the Authority is aware of the potential for that, and I think is using this public opportunity as a time to get some of that sorted out in an efficient way.
TDN: I'm assuming when this goes into effect, it's a blank slate–violations that were accrued prior to the law going into effect won't be retroactively adjudicated?
TT: These rules are only prospective. Of course, you can use evidence from the past for intelligence–not to find a new violation necessarily. But you can use it for target testing or other elements.