GAMING LAW REVIEW AND ECONOMICS Volume 20, Number 6, 2016 Mary Ann Liebert, Inc. DOI: 10.1089/glre.2016.2066

Teach Me How to Derby: The Need for Standardized Regulations in

Amanda L. Busch

t the horse races, spectators expect to see fore the racing season in 2014 so that it would qualify A stunningly strong horses, enthusiastic wagering, for the Breeders’ Cup to be held in November 2017.8 colorful jockeys, and fancy hats; however, they do The turf track at Del Mar was refurbished during not expect to see a horse euthanized on the track. the winter and early spring to be ready by opening During the summer of 2014, however, equine death day in 2014; however, there were many delays due was a rather reality at the Del Mar Thor- to the high water table.9 The delays may have oughbred Club in Del Mar, California. Between resulted in a track that was too fast and firm, and opening day on July 17 and August 28, sixteen the rush to open on time seems to have led to less horses dropped dead while racing at the Del Mar testing, which may have adversely impacted the Racetrack. It is no surprise that horse racing is a bru- safety of the track. The president and chief execu- tal sport, but the number of deaths has raised many tive officer (CEO) of Del Mar said that he did not red flags. It has caused many people to question believe the delay in construction of the refurbished the priority given to the horses’ safety, as well as track was a factor causing the firm and fast condi- the testing performed on the safety of the track.1 tions of the track.10

Horse racing was once the most watched spectator sport, and it is one of the few sports in the United States that allows for legal betting.2 Since gambling is permitted at the event, it is also one of the most reg- 1See generally Jeff Nahill, Cause Im a Bigshot 16th to Die at ulated sports.3 Its public perception has been tarnished, Del Mar, UT San Diego (Aug. 28, 2014), available at however, because of the appearance that there is a lack . of concern for the health and safety of the horses. 2Harry M. Hoffheimer, Some Horse-Racing Tips for Lawyers, While the gambling aspects are highly regulated, the 50 A.B.A. J. 250, 250 (1964), available at . 3 safety of the horses does not seem to be a priority to Luke P. Breslin, Reclaiming the Glory in the ‘‘Sport of 5 Kings’’—Uniformity is the Answer,20Seton Hall J. Sports officials. Some of the aspects of horse racing that af- and Ent. L. 297, 314 (2010), available at . fect the safety of the horses are: the type of track ma- 4Id. at 317. terials, maintenance of tracks, and regulations on the 5Id. at 317. 6CA Horse Racing Bd., 44th Annual Report of the use of drugs to enhance the horses’ performance. California Horse Racing Board 22 (2013–2014), avail- There are three types of horse racing tracks: dirt, able at . 7 cushion track).6 In 2014, the Breeders’ Cup an- The Breeders’ Cup is the world championship for international horse racing each year. It takes place in late Oc- nounced a three-year host site, which would require tober to early November, and the track that the races are held on tracks to meet certain criteria to qualify to host the changes each year. For more information, see Press Release, Breeders’ Cup.7 Del Mar refurbished its turf track be- Breeders’ Cup, Breeders’ Cup Announces Del Mar as the Host of the 2017 Breeders’ Cup World Championship (June 24, 2014), available at . Amanda L. Busch graduated from the University of Georgia in 8Ed Zieralski, Horse Deaths Force Del Mar to Close Turf Course, December 2012 with a Bachelors of Arts in Criminal Justice. UT San Diego (July 26, 2014), available at . at the University of Mississippi School of Law in May 2016, 9Id. with a certificate in Criminal Law. 10Id.

516 TEACH ME HOW TO DERBY 517

Most of the fatalities at the track in the 2014 season which can lead to irregular maintenance sched- happened on the refurbished turf track, which forced ules.30 Synthetic track material holds in the heat, Del Mar to close the turf track to perform mainte- and in places where the temperatures get into the nance.11 Even with all the deaths, Del Mar’s presi- 100s, this can be a serious issue.31 Synthetic tracks dent and CEO stated that he felt the track was safe are also stickier than a dirt or turf track.32 This can and that other issues led to the deaths.12 One of the lead to broken legs, because if a horse changes di- piece of evidence that Del Mar gave in favor of the rection or takes an awkward turn, its hooves could safety of the course was that the jockeys enjoyed rac- stick to the track, and the momentum of the horse’s ing on it, and they felt it was a firm and fast track, but body could cause it to fall.33 The maintenance of a not unsafe.13 There was no scientific proof, however, synthetic track requires it to be watered down each offered to demonstrate the safety of the track. day, and getting the right amount of water can be Despite officials saying that the track was safe, the tricky; however, there is research being done on au- rails were moved out farther to give the horses new tomatic watering systems, much like those used in turf to run on, and Del Mar aerated the entire track farming.34 to make it slower and give it more bounce.14 The The way to make races more enjoyable and safer Polytrack also underwent some changes mid-season, for the riders and horses is to make the tracks con- after all the deaths.15 This included wax being coated sistent for every race, at every track.35 The same onto the track to bind the sand particles together, be- cause when track material is more tightly bound, there is less kickback, which slows the horses down.16 All of these techniques should, and did, 11Turf Races Moved to Polytrack for Remainder of Week, Del lead to a decline in injuries.17 Mar Media News (July 31, 2014), available at . deaths, the turf course underwent major changes in 12Zieralski, Horse Deaths, supra note 8. 18 13Id. the off-season. Some areas of track were widened, 14 19 Id. and all the grass was replaced. The California 15

Ed Zieralski, Del Mar Takes Steps for Safer Racing, UT San Horse Racing Board (CHRB) investigated the Diego (July 29, 2014), available at . 16Id. that the turf course was the reason so many horses 17Zieralski, Horse Deaths, supra note 8. were injured; regardless, it requested that Del Mar 18CA Horse Racing Bd., 44th Annual Report, supra note make improvements.21 The improvements included 6, at 3. 19Id. allowing the grass to get taller, more water, and aer- 20Id. 22 ation. During the Fall Meet at Del Mar, there were 21Id. no fatalities, which was a huge improvement, but it 22Id. 23Id. raised suspicion about the previous condition of the 24CA Horse Racing Bd th Annual Report of the 23 ., 36 track during the summer of 2014. California Horse Racing Board, at 3 (2005–2006), avail- On May 25, 2006, California’s Horse Racing able at . 25Id. at 3–4. would have to be switched over to synthetic track be- 26Id. at 3–4. cause it believed that this would reduce injuries.24 27Daniel Ross, Scratching the Surface: US Racing Looks to Hollywood Park was the first to convert.25 It opened Track Conditions to Lower Injury Rates, Guardian (New York) (Sept. 23, 2014), available at race on November 1. California was not the only 28Id. state to start using synthetic tracks; Keeneland in 29Lance Pugmire, Concerns Still Surface Over Del Mar Track, L.A. Times Kentucky installed a synthetic track as well.27 (Sept. 4, 2008), available at . While the number of injuries and deaths dropped, 30Id. not everyone liked the idea of the synthetic track.28 31Ross, supra note 27. 32Id. Synthetic tracks can lead to slower race times, 33 29 Id. which frustrates both owners and riders. Further- 34Id. more, the weather often influences synthetic tracks, 35Id. 518 BUSCH effort was not put into all the tracks when they were tered drugs, and therefore cannot willingly assume being converted; therefore, there is great inconsis- the risks that are associated with drug use.51 tency between tracks.36 One horse owner, Jerry Drug use was once very hushed with the public; it Jamgotchian, now refuses to bet or race on Califor- was only discussed among members of the horse nia tracks because of the inconsistency in how the racing industry.52 In May 2008, two horses named tracks were built and maintained.37 He specifically Eight Belles and changed that dynamic noted the rush to get tracks completed in the re- and made drug use in horse racing a recognized na- quired amount of time, without losing racing tional problem.53 During the 2008 , days.38 Beyond rushing to finish jobs, track opera- Big Brown narrowly won over Eight Belles, but the tors overacted to slow race times and overhauled excitement did not stop there.54 Just as Eight Belles their tracks, even though it led to unsafe racing sur- crossed the finish line she collapsed due to two bro- faces for the horses.39 Jamgotchian said that ken legs and had to be euthanized in front of milli- ‘‘shoddy, inconsistent tracks are the enemy’’ of ons of live and television spectators.55 Big Brown’s handicappers, trainers, horse owners, and bettors.40 trainer decided to speak out to prevent future inju- When tracks were originally changed from dirt to ries, like those that had occurred with Eight synthetic material, trainers were told that the new Belles.56 Big Brown’s trainer explained that he synthetic tracks would be better than the dirt would give Big Brown anabolic steroids before tracks.41 In more recent years, however, track own- each race to enhance his performance.57 This once ers and trainers have been unhappy with synthetic quiet talk within the industry became such a na- tracks.42 Due to this unhappiness, the requirement tional issue that 32 out of the 36 states that have for synthetic tracks in California has been lifted, and many tracks have been converted back to 43 dirt. The last race of the 2014 season at Del Mar 36Id. was on November 30, 2014, and by December 8, 37Brian Hiro, Horse Racing: Thorn in Their Side: Passionate contractors had begun removing 15,000 tons of syn- Owner Jerry Jamgotchian Constantly Challenges the Sport’s UT San Diego thetic material to convert back to a dirt track.44 This Establishment, (July 18, 2009), available at

. is not being put into research for safer tracks, in- 38Id. 39 stead of faster tracks.45 Pugmire, supra note 29. 40Hiro, supra note 37. When a horse is racing at a speed of 38 miles per 41Pugmire, supra note 29. hour, its hooves hit the ground roughly 150 times 42Work Toward Del Mar’s New Dirt Track Moves Steadily per minute, so it is hard to argue that the safety of Along, Del Mar Media News (Jan. 28, 2015), available at importance. While standardizing the tracks will 43Id. 44Id. not eliminate all injuries, it will help with perfor- 45 47 Pugmire, supra note 29. mance and safety. 46 Michael ‘‘Mich’’ Peterson et al., Racing Surfaces White Paper, Grayson-Jockey Club at 5, available at . 47 DRUG REGULATIONS IN HORSE RACING Id. at 3. 48Bradley S. Friedman, Oats, Water, Hay, and Everything Else: The Regulation of Anabolic Steroids in Thoroughbred Horse When it comes to regulations, issues with the Racing,16Animal L. 123, 140 (2009–2010), available at . tracks are not the only concerns in the horse racing 49 48 Id. at 134. field; another issue is drug use. This is a large con- 50Joan S. Howland and Michael J. Hannon, A Legal cern, since bets are being placed on individual Research to American Thoroughbred Racing Law for horses and what place they finish.49 There are four Scholars, Practitioners and Participants 1, 23 (1998), available at . primary reasons for drug use in horse racing: drug- 51 Friedman, supra note 48, at 143. ging to win, drugging to lose, therapeutic reasons, 52Id. at 125. and accidental drugging.50 While there are similar- 53Id. 54 ities between drug use in human sports and drug use Id. 55Id. in the sport of horse racing, there is one major dif- 56Id. ference: horses cannot consent to being adminis- 57Id. TEACH ME HOW TO DERBY 519 racetracks passed some sort of regulation on ana- The Senate bill was also introduced on May 16, bolic steroids and horse racing.58 2013.74 It was referred to the Committee on Com- There is a trainer’s responsibility rule, which states merce, Science, and Transportation.75 The propos- that horse trainers and other handlers are responsible als in the Senate bill were the same as the House for any horse under their supervision; however, pen- bill.76 This bill was also not enacted and died in alties are often mild or non-existent.59 An example Congress.77 of this is when Ramon O. Gonzales Sr. was caught Even as these bills were pending, the Jockey drugging 10 horses.60 The charges were dropped Club released a statement saying that if the majority completely because the commission forgot to file of states did not adopt uniform medication rules, the proper paperwork.61 States such as New Mexico then it would push for a federal regulation of even allow a free pass for the first drugging viola- horse racing.78 By July 2014, some jurisdictions tion, a small fine of $200 for the second violation, and only $400 for the third.62 The leniency does not let up there: every 12 months, the violations 58Id. at 57. are wiped clean, and trainers can once again get a 59 free pass for their ‘‘first’’ violation.63 Rarely are vio- Id.; see also Walt Bogdanich et al., Mangled Horses, Maimed Jockeys, N.Y. Times (Mar. 21, 2012), available at . 60Bogdanich, supra note 59. 61Id. 62Id. LEGISLATION PROPOSED IN HORSE 63Id. RACING 64Id. 65Layla Klamt, Horse Races Continue at Del Mar Despite Deaths [Graphic Video], Guardian Liberty Voice (Aug. With an estimated 24 horses dying per week dur- 25, 2014), available at . ing racing season, safety should be a huge concern 66 for racing boards.65 The large number of deaths, Ray Paulick, NY Times: PETA Files Complaint After Under-

cover Investigation of Asmussen Stable, Paulick Report many of which can be attributed to drug use, caught (Mar. 20, 2014), available at . 67Id. viewers to contact their U.S. representatives and 68Horseracing Integrity and Safety Act of 2013, H.R. 2012, 113 senators to show their support of the proposed Cong. (2013), available at . 69Id. which was introduced as Senate Bill 973 and 70‘‘Every Day, I Almost Quit’’: Confessions of a Racetrack Vet- 67 House Bill 2012. erinarian, NBC News (May 15, 2014), available at . 2013. It required there be an independent anti- 71Id. doping organization, and listed some of the respon- 72Id. sibilities of that organization. It also set out what 73Horseracing Integrity and Safety Act of 2013, H.R. 2012, 113 type of punishments the organization could impose Cong. (2013), available at . on a person that violated the rules. This bill is the 74Horseracing Integrity and Safety Act of 2013, S. 973, 113 first of its kind to suggest that there should to be a Cong. (2013), available at . 75Horseracing Integrity and Safety Act of 2013, S. 973, 113 would be performed by an anti-doping organiza- Cong. (2013), available at https://www.congress.gov/bill/ 70 < tion. One of the co-sponsors, Representative Joe 113th-congress/senate-bill/973>. Pitts, said that he was growing frustrated with the in- 76Horseracing Integrity and Safety Act of 2013, S. 973, 113 dustry promising to better regulate drug use.71 Pitts Cong. (2013), available at . said, ‘‘I introduced my bill in order to end race day 77Id. medication and bring horseracing in line with other 78Matt Hegarty, Jockey Club to Push for Federal Regulation of sports that have a national and uniform testing pol- Racing if Uniform Drug Rules Aren’t Adopted, Daily Racing 72 Form (Aug. 11, 2013), available at . 520 BUSCH had adopted all or parts of the National Uniform Papp goes on to say that owners and trainers have Medical Program.79 Unfortunately, some is not all, one goal in mind, and that is to have the horses run and parts do not equal uniformity. For the program well, so that they will win races and the payout for to actually be considered a success, all states need to the owners, trainers, and bettors will be greater.93 adopt the entire program; moreover, this program Owners and trainers are not looking at the long- only focuses on drugs, and not on other issues of term effects of the drugs that they are injecting uniformity in the horse racing world. into the horses; they are looking for fast results.94 In April 2015, racing officials expected to see fed- Papp and other vets have said that the medication eral legislation filed to establish a federal agency to is not being used for therapeutic purposes; it is oversee all medication and drug issues in horse rac- used to keep a horse going when the horse’s body ing.80 This bill was similar to the one introduced is saying it is time to stop.95 The overuse of these and rejected in 2013.81 On July 16, 2015, the bipar- drugs can have negative side effects because they tisan Thoroughbred Racing Integrity Act of 2015 do not actually treat what is wrong with a horse, (H.R. 3084) was introduced.82 Andy Barr, a Repub- but rather just mask the symptoms, which can lead lican congressman from Kentucky, and Paul Tonko, to bigger injuries and a total breakdown of the a Democratic congressman from New York, intro- horse.96 duced the bill.83 H.R. 3084, like the bills before it, 84 focuses on an anti-doping program. The Horse CALIFORNIA HORSE RACING Racing Integrity Act website explained that the state-by-state drug laws are a messy patchwork sys- The California Horse Racing Board has a special tem that only leads to confusion and unfair competi- program devoted to safety, known as the Racing tion for horse owners and trainers traveling over state Safety Program.97 This program is fairly new, hav- lines, as well as inconsistency for bettors who want ing been established in early 2010.98 The members to fairly evaluate horses before wagering away their hard-earned money.85 If passed, it would go into effect on January 1, 2017, and the United States 79

Tom LaMarra, Uniform Drug Program Picking Up Support, Anti-Doping Agency would have exclusive jurisdic- Blood Horse (July 10, 2014), available at . 80Tom LaMarra, Federal Bill Expected for Drug Regulation, While the House and Senate did not implement Blood Horse (Apr.6,2015),available at . 81Id. horse racing industry, including veterinarians who 82Thoroughbred Horseracing Integrity Act of 2015, H.R. 3084, 87 specialize in treating race horses. Kate Papp, a 114 Cong. (2015–2016), available at . 83Id. cided to speak out about things she has seen going 84Id. on behind closed doors at racetracks and horse rac- 85Coalition for Horse Racing Integrity, Take Action, HorseRa- ing training facilities.88 Papp’s reason for speaking cingIntegrity.com, available at . 86Thoroughbred Horseracing Integrity Act of 2015, H.R. 3084, she wants the horse racing industry to reverse the al- 114 Cong. (2015–2016), available at . 87 says it is a daily struggle not to quit her job because Every Day, supra note 70. 88Id. she constantly questions whether she can follow the 89Id. professional oath she took to protect animals and 90Id. prevent suffering.90 She describes one of her daily 91Id. 92Id. jobs as being forced to inject horses with painkillers 93 91 Id. and other medications that they may not need. She 94Id. says it is not uncommon to see young horses that 95Id. 96 have not even run yet be euthanized because they Id. 97CA Horse Racing Bd., 44th Annual Report, supra note were trained too hard, pushed too far, and overme- 6, at 22. dicated.92 98Id. TEACH ME HOW TO DERBY 521 of the Racing Safety Program are required by Busi- measures are among the strictest and most compre- nesses and Professions Code § 19481.3 to prepare hensive in the nation.’’113 New York proudly says reports that identify likely reasons for all accidents that those who attempt to cheat will be held ac- that happen on the track.99 The Racing Safety Pro- countable for their actions.114 They have published gram members are also required to monitor racing two databases for the public: one that has every surfaces, evaluate a track’s safety standards, de- horse that has broken down, died, or been seriously velop continuing education of horse racing safety, injured at the track; and another database that con- and to provide postmortem pathology reports.100 tains every fine and suspension issued by the The chart provided by the CHBR does not divulge board of licensees, going back almost three de- how much revenue is put into this program.101 cades.115 However, there is little to no public infor- The health and safety regulations do not stop with mation about the standards, who is in charge of just the Racing Safety Program; there is also a lab- making sure tracks are up to those standards, and oratory service and an Equine Postmortem Pro- what standards need to be met.116 gram.102 California has a laboratory service that requires blood and urine samples from each of the horses racing.103 This program was put into place to help KENTUCKY HORSE RACING preserve the integrity of the sport and protect the safety of the horses.104 The samples are obtained Kentucky publishes the Kentucky Horse Racing before every race and from the winner of each Commissioners (KHRC) report biennially; the most 117 race, any horse finishing in second or third place current available report is the 2012–2013 edition. at some races, and can also be directed at random One of the committees included in the commission after any race, even if a horse has not won, placed, is the Kentucky Equine Drug Research Council 118 or shown.105 The post-race samples are the biggest (EDRC). The EDRC focuses on the safety of part of the drug regulation program in California.106 the animals when it comes to drugs, including test- 119 The post-race test includes testing for anabolic ste- ing, research, protocol, and recommendations. roids and over 1,500 other drugs, and a special test There is also a Necropsy Subcommittee that advises 120 was added in 2014 to check for cobalt.107 The - EDRC on issues that result in a fatality. Kentucky ples are sent to an accredited Racing Medical Test- ing Consortium (RMTC) lab, the laboratory at the University of California, Davis (the Maddy Lab), 99 to be tested.108 Id. 100Id. The California Equine Postmortem Program was 101Id. at 42. created to study injuries that occur to race horses, to 102Id. at 21–23. 103Id. at 21. find what caused the injuries, and to help develop 104 109 Id. ways to prevent those injuries. To help study 105Id. the injuries, a necropsy, which is also known as an 106Id. autopsy, is performed on all horses that die within 107Id. 108 a California horse racing facility.110 The ultimate Id. 109Id. at 23. goal of this program is to lessen serious, non-fatal 110Id. injuries to the horses and prevent deaths at the race- 111Id. 112 track, as well as to protect the jockeys riding the New York State Gaming Commission, Horse Racing, 111 Gaming.ny.gov, available at missions as well. 113Id. 114Id. 115Id. 116Id. NEW YORK HORSE RACING 117KY Horse Racing Comm’n, 2012–2013 Biennial Report (2012–2013), available at . 118Id. at 15. Racing Equine Health and Safety Division claims 119Id. that ‘‘New York’s equine drug rules and protective 120Id. 522 BUSCH also has a Safety and Welfare Committee.121 The crowds each year than all major and minor league Safety and Welfare Committee conducts public baseball games, and college and professional foot- meetings at two of the tracks to address questions ball games.134 In the last two decades, however, at- and concerns about safety regulations.122 They tendance at the races has decreased by nearly 50 focus on health and safety of both humans and percent.135 horses participating in the races.123 Kentucky also Some of the blame for the public’s loss of trust in has a Rule Committee that looks at regulations and the horse racing industry and decline in attendance makes recommendations for governing and improv- has been placed on the lack of organized, uniform ing the horse racing industry.124 rules in the industry.136 To address this concern, or- Kentucky has a Division of Veterinary Services, ganizations such as the Racing Medication and which oversees all regulatory items associated Testing Consortium (RMTC), the National Thor- with horse racing, which includes: pre-race exams oughbred Racing Association (NTRA), which has for fitness, on-track monitoring of health and well- a safety and integrity alliance, and the Grayson- being, racetrack injuries, determining eligibility Jockey Club Research Foundation’s Welfare and for a race, record keeping, and more.125 On race Safety of Racehorse Summit, started a process to- days, the horses are examined by the Vet Division wards uniformity.137 in the morning, while saddling up, and during pre- The mission of the RMTC is ‘‘to develop, pro- race warm ups.126 All the records are stored in a mote and coordinate, at the national level, policies, program that provides shared access to other racing research and educational programs that seek to en- regulation vets, so that a horse’s conditions can be sure the fairness and integrity of racing and the monitored over time, despite being at a different health and welfare of racehorses and participants, track or in a different state.127 All scratches and and to protect the interests of the racing public.’’138 race related injuries are also put into a database Goals of the organization include: developing uni- called the Jockey Club Equine Injury Database.128 form policies, being an unbiased source for infor- If a horse dies at a Kentucky track, the body is mation regarding research in such areas as safety sent to the University of Kentucky for a necropsy, and drug abuse, to create uniformity for legitimate which includes in-depth evaluations and radiogra- therapeutic drugs and drug testing in a laboratory, phy of all limbs.129 Kentucky Statute § 230.265 pertains to the Ken- 130 tucky Equine Drug Research Council. The coun- 121Id. at 16. cil is made up of nine members that are appointed 122KY Horse Racing Comm’n, 2010 Annual Report 21 by the governor, and those members include: a vet- (2010), available at . erinarian, horseman, pharmacologist, thoroughbred 123KY Horse Racing Comm’n, 2012–2013 Biennial breeder, legislator, a representative of a licensed Report, supra note 117, at 16. racing association, a member of the harness racing 124Id. 125Id. at 31–38. industry, a member from Kentucky Harness Horse- 126Id. men’s Association, and a member of the Kentucky 127Id. Horse Racing Commission.131 The purpose of the 128Id. 129 council is to review drug research and testing, ad- Id. 130Ky. Rev. Stat. Ann. § 230.265 (Westlaw 2014). vise the racing commission, help to continue to es- 131Id.; see also KY Horse Racing Comm’n, 2012–2013 tablish a drug regulatory policy in Kentucky, and Biennial Report, supra note 117, at 15. 132Id. report changes that need to be made to the regula- 133 132 Henry D. Fetter, No, Horse Racing Can’t Be Saved—Even by tion of drug use in horse racing. a Triple Crown Winner, Atlantic (Washington, DC) (May 20, 2014), available at . 134Hoffheimer, supra note 2, at 250. 135Fetter, supra note 133. With health and safety concerns on the rise and 136Breslin, supra note 3, at 324. 137 questions about the integrity of the competition, Id. at 320. 138Racing Medication and Testing Consortium, Goals and many spectators and gamblers have lost faith in Accomplishments, rmtcnet.com, available at . TEACH ME HOW TO DERBY 523 to create a program to educate industry stakeholders important to join, because the accreditation is more about maintaining the integrity of the sport, and to of a window dressing than a necessity to run a good distribute information to all stakeholders in a timely track.155 In addition, with both the RMTC and the manner.139 While the RMTC has accomplished NTRA, the area of uniformity in regulation of the many of the goals it has set forth, this is not a perfect track itself is being overlooked. solution to all the problems in the racing world.140 The National Thoroughbred Racing Association (NTRA) offers benefits to its members, including PROPOSAL FOR FEDERAL RULES discounts on many products for farm, business, AND REGULATIONS and personal use.141 The biggest benefit is actually for racing facilities, and that benefit is to become an With each state able to operate under its own rules accredited member of the National Thoroughbred and regulations due to the lack of federal or national Racing Association Safety and Integrity Alliance regulation, tracks can and have been as lenient as (NTRASIA).142 For a racetrack to become a mem- they want when it comes to enforcing rules and pun- ber, operators must fill out a 48-page application ishing those who violate the rules.156 With the lack and have an on-site inspection of the facilities.143 of a powerful central authority in horse racing, Currently, 23 racing facilities are accredited, but there has been a decline in health and safety, as originally, 55 tracks had pledged to apply for ac- well as a competitive disadvantage among jurisdic- creditation.144 More than half of them failed to do tions.157 For years, many states had no regulations so.145 The NTRASIA has a code of standards that on drug use in horses, and even fewer had regula- is updated each year, and accredited facilities tions regarding the track’s safety.158 must comply with these standards; there are also Many in the horse racing industry have seen a Model Rules which each accredited racetrack need for a change over the past few years, and must follow.146 The code of standards contains stan- many have sadly had to sit back and watch the over- dards on reporting injuries or fatalities, safety all decline in the sport. The integrity of the sport has equipment, medication and testing, jockey qualifi- been compromised with the patchy and unorganized cation, and more.147 The Model Rules cover every structure that is currently being used in horse racing. part of the operation of a racetrack, except that there is no rule covering what the track must be made from, or standards for the track itself.148 The Grayson-Jockey Club Research Foundation 139Id. 140 was created to raise money to fund research projects Id. See Racing Medication and Testing Consortium, Recent 149 Accomplishments of the RMTC, available at , for more information about those accomplishments. Research Foundation’s Welfare and Safety of the 141 Racehorse Summit.150 The Welfare and Safety of Nat’l Thoroughbred Racing Assoc., NTRA Advantage, NTRA.com, available at . the Racehorse Summit met for the first time in Oc- 142Id. at Safety Alliance. tober of 2006, as a two-day workshop.151 A cross 143Id. 144 section of the horse racing community, including Id. 145Id. breeders, veterinarians, and others, was brought to- 146Id. gether to focus on improving welfare and safety in 147Id. 152 148Id. horse racing. They now meet every two years 149 153 Grayson-Jockey Club Research Foundation, Inc., Who Are with the same goals in mind. Different commit- We, Grayson-Jockey Club, available at . 150Id. as racing surfaces, durability, shoeing, hoof care, 151 154 Id. at Welfare and Safety of the Racehorse Summit. and more. 152Id. While the RMTC is a tax-deductible organiza- 153Id. tion, and the NTRA would help tracks receive ac- 154Id. 155 creditation and offers its members several great Bogdanich, supra note 60. 156Id. discounts, many racetracks either do not have the 157Breslin, supra note 3, at 315. money to spend on joining, or else believe it is un- 158Friedman, supra note 48, at 144. 524 BUSCH

Something needs to be done, and having all jurisdic- type of track is best for the well-being of the horses, tions operating under the same rules and regulations without hindering horses from breaking record would be the best start to improving the sport of times. Lastly, improvements need to be made in horse racing as a whole. the drug testing techniques to expand ability to Implementing national standards is nowhere near test for more drugs, in the most accurate manner. impossible, as there are national standards for most other professional sports.159 RMTC, NTRA, and Grayson-Jockey Club have already put the time, CONCLUSION money, and effort into research and developing the basis for federal uniform rules.160 Using their ef- Too many horses are dying during horse races forts as a ground floor, the transition would be off today, too many gamblers have stopped placing bets to a good start.161 Implementing uniform federal at tracks, and far too many people have lost faith in rules would have many benefits to the horse racing the racing world. Something clearly needs to be community: getting everyone to operate on a level done: horse racing has fallen far from being the larg- playing field, health and safety improvements, uni- est spectator sport, and much of the blame for the de- formity in tracks and track materials, and restoring cline can be put on the distrust in the racing faith in horse racing. All of this would also help industry.162 People do not want to bet money in a the gambling aspect of horse racing, as well as en- sport that they do not trust, and people do not want tice new horses into racing at different tracks. to attend races where the likelihood of seeing a seri- Uniform federal rules and regulations should in- ous injury is high. The best way to bring fans back to clude: a uniform drug rule, with required penalties the sport is to stop playing around with a mash-up of for people who violate it; consistency in the tracks, disparate rules and regulations, and instead establish as measured by a unbiased party; uniform drug test- something across the board to restore integrity to the ing procedures; a safety standard for how long a sport. The sport needs uniform nationwide rules and horse needs to heal before racing after an injury; regulations. Even though horse racing is one of the and what tests should be performed before a horse most regulated sports due to the fact that it allows is certified to be race ready. Areas for research gambling, the sport of horse racing is still largely un- should include creating and perfecting a device regulated when it comes to health and safety.163 that will determine when the track needs to be Almost every other professional sport has national watered, or when it is too wet, and automatically regulations, and horse racing needs to follow that correct the problem if water is needed, much like trend. The positive reputation of a sport, which what is used on farms for crops. In addition, re- was once viewed as the ‘‘Sport of Kings,’’ can only search needs to be performed to determine what fall so far before it fades into a distant memory.164

159Breslin, supra note 3, at 315. 160Id. at 327. 161Id. at 327; see also Racing Medication and Testing Consor- tium, supra note 138; Nat’l Thoroughbred Racing Assoc, supra note 141; Grayson-Jockey Club Research Foundation, Inc., supra note 149. 162Hoffheimer, supra note 2, at 250. 163Breslin, supra note 3, at 314. 164Id. at 297. See also Michael Russell, Horse Racing—The Sport of Kings, Ezine (Mar. 30, 2006), available at .