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Horse Racing in the United States: a Call for a Harmonized Approach to Anti-Doping Regulation

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Horse Racing in the United States: a Call for a Harmonized Approach to Anti-Doping Regulation Journal of Legal Aspects of Sport, 2015, 25, 176 -188 http://dx.doi.org/10.1123/jlas.2014-0015 © 2015 Sport and Recreation Law Association ORIGINAL RESEARCH Horse Racing in the United States: A Call for a Harmonized Approach to Anti-Doping Regulation John T. Wendt The use of performance-enhancing drugs may be the biggest problem facing horse racing in the United States. A 2012 investigation reported that 3,800 horses had tested positive for drugs, the majority for illegal levels of prescription drugs. Additionally, the investigation indicated that approximately 24 horses a week die at America’s tracks. The pervasive use of injury-masking and performance-enhancing drugs in United States horse racing has created a crisis in the industry and is destroying the reputation of a once vibrant sport. Because there are 38 separate state racing commissions with different sets of rules and practices, the United States is struggling to reach some sort of harmonization or uniformity. However, recent events have triggered renewed calls for regulation of performance-enhancing drugs. This article addresses what is presently being done to combat the use of performance-enhancing drugs in the “Sport of Kings.” The Triple Crown in horse racing is comprised of the Kentucky Derby, the Preakness Stakes, and the Belmont Stakes. Before American Pharoah accomplished this amazing feat in 2015, the last Triple Crown winner was Affirmed in 1978.1 Several horses in the last 10 years have come close. The most notable was a 2014 candidate named California Chrome, who had won the first two legs of the Triple Crown, thereby rising from obscurity to become “America’s Horse.”2 But going into the Belmont Stakes, Chrome’s owner had to get a waiver from the Belmont track stewards to allow the horse to wear nasal strips (similar to the Breath Right3 nasal strips worn my humans).4 Nasal strips for horses are allowed in Kentucky 1 Triple Crown Races, Triple Crown History (2014), http://www.triplecrownraces.com/. 2 Tim Wilkin, California Chrome becomes America’s horse (May 31, 2014), http://www.sfgate. com/sports/article/California-Chrome-becomes-America-s-horse-5519940.php. 3 Breathe Right, Instant Nasal Congestion Relief - Nasal Strips (2014), http://www.breatheright. com/. 4 Canadian Press, Success of California Chrome might lead to anti-doping reform (Jun. 6, 2014), http://www.tsn.ca/other_sports/story/?id=454142. Wendt ([email protected]) is with the Dept. of Ethics and Business Law, University of St. Thomas, Minneapolis, MN. 176 Harmonization in Horse Racing 177 and Maryland but not New York.5 The New York Racing Commission, in conjunc- tion with the New York State Gaming Commission and The Jockey Club, issued a statement that nasal strips were not performance enhancing and did pose a welfare or safety risk.6 The statement made by these three parties exemplifies the current status of regulation in the horse racing industry. The Federal Trade Commission has responsibility, under the 1978 Horse Racing Act, for oversight and enforcement of rules and practices in the sport of horse racing. However, there are at least 38 separate state racing commissions, with 38 different sets of rules and practices in place.7 Although recent events and scandals, including California Chrome, have triggered renewed calls for regulation of performance-enhancing drugs,8 there is no apparent uniformity or harmonization regarding the prohibition against the use of performance-enhancing drugs in the “Sport of Kings.” In anti-doping efforts, “harmonization” refers to both a process and an outcome, and has as its focus the World Anti-Doping Code, its sets of international standards and guidelines, and also the UNESCO Convention Against Doping in Sport.9 Presently, the use of performance-enhancing drugs may be the biggest problem facing horse racing. A 2012 investigation by The New York Times found that 3,800 horses had tested positive for drugs, the large majority of which were for illegal levels of prescription drugs.10 Another Times investigation found that approximately 24 horses a week die at America’s tracks, a greater rate than in countries where drug use is severely restricted.11 In 2013, Dr. Sheila Lyons, founder of the American College of Veterinary Sports Medicine and Rehabilitation, testified before Congress that, “The pervasive use of injury masking and performance-enhancing drugs in horse racing in the United States has created a crisis in the horse racing industry and 5 Id. 6 New York Racing Commission, Joint Statement From The New York State Gaming Commission, NYRA and The Jockey Club Regarding The Use of Nasal Strips - General News (May 19, 2014), http://www.nyra.com/belmont/joint-statement-from-the-new-york-state-gaming-commission- nyra-and-the-jockey-club-regarding-the-use-of-nasal-strips/. 7 Ray Paulick, Horse racing back in front of Congress at PA hearing (Apr. 30, 2012), http://www. paulickreport.com/news/ray-s-paddock/horse-racing-back-in-front-of-congress-at-pa-hearing- watch-live-follow-ray/. 8 Bartlett, Medication Regulations of the California Horse Racing Industry: Are Changes Needed to Prevent the Use of Illegal Drugs?, 27 San Diego Law Review 743. 9 Barrie Houlihan, Achieving Compliance in International Anti-Doping Policy: An Analysis of the 2009 World Anti-Doping Code, 17 Sport Management Review 265 (2014). 10 Canadian Press, supra note 4. 11 Walt Bogdanich et al., Death and Disarray at America’s Racetracks (Mar. 24, 2012), http://www. nytimes.com/2012/03/25/us/death-and-disarray-at-americas-racetracks.html?pagewanted=all&_ r=0. JLAS Vol. 25, No. 2, 2015 178 Wendt is destroying the reputation of a once vibrant sport.”12 Even more recently, Travis Tygart, chief executive of the United States Anti-Doping Agency (USADA), said I’ve been told that it’s the wild, wild West. It’s 1,000 times worse than any- thing we’ve seen because people in the sport can go out and bet on themselves. Our experience has shown that it’s impossible for anyone to both promote a sport and attempt to police the drug issue at the same time. There’s a massive conflict of interest.”13 Part I of this article provides a brief general background of efforts to combat doping in sport. Part II provides a brief look at horse racing and anti-doping attempts. Part III discusses the recent doping case concerning Rick Dutrow in the United States. Part IV discusses anti-doping efforts by the International Federation of Horseracing Authorities (IFHA). Part V deals with recent horse racing legislation in the United States and Part VI is the conclusion with recommendations. General Background of Efforts to Combat Doping in Sport Before 1998 there was no coordinated effort to fight doping in sport as each sport had different definitions, policies, sanctions, and punishments.14 The 1998 Tour de France cycling scandal highlighted the need for an independent international agency to create unified standards for anti-doping work and to coordinate the efforts of both sports organizations and public authorities.15 The independent international agency, the World Anti-Doping Agency (WADA), was created to bring harmony to the international (and national) sporting community with universally accepted rules and protocols. The WADA mission is to lead a collaborative worldwide campaign for doping-free sport. As such, WADA created the World Anti-Doping Code “to advance the anti-doping effort through universal harmonization of core anti-doping elements. It is intended to be specific enough to achieve complete harmonization on issues where uniformity is required, yet general enough in other areas to permit flexibility on how agreed-upon anti-doping principles are implemented.”16 12 A Bill To Improve The Integrity and Safety of Interstate Horseracing, and For Other Purposes, Hearing on H.R. 2012, Before the Subcomm. On Commerce, Manufacturing and Trade of the H. Comm. on Energy and Commerce, 113th Cong, 1 - 75 (2013) (statement of Sheila Lyons, DVM, Founder and Director, The American College of Veterinary Sports Medicine and Rehabilitation®). 13 Juliet Macur, Horse Racing Still Stumbling in Antidrug Push (Jun. 3, 2014), http://www.nytimes. com/2014/06/04/sports/horse-racing-still-stumbling-in-push-against-drugs.html?module=Searc h&mabReward=relbias%3As%2C%5B%22RI%3A8%22%2C%22RI%3A15%22%5D&_r=0. 14 World Anti-Doping Agency, A Brief History of Anti-Doping (2014), http://www.wada-ama. org/en/about-wada/history/. 15 Id. 16 World Anti-Doping Agency, World Anti-Doping Code, 2007 Code Amendments (2007) at 7. JLAS Vol. 25, No. 2, 2015 Harmonization in Horse Racing 179 The World Anti-Doping Code unanimously was adopted by all international sports and governments of the world in Copenhagen in March 2003 with 665 signatories binding anti-doping regulation across all continents and sports.17 One hundred and seventy-six countries—which equates to 98 per cent of the world’s population—have now ratified the UNESCO Convention against Doping in Sport.18 However, horse racing is not one of the signatories. The primary problem with horse racing is that many stakeholders either refuse to seek a harmonization of medication standards or deny that there is a problem.19 Horse Racing in the United States In the United States horse racing is a $40 billion industry that generates roughly 400,000 jobs nationwide.20 However, the widespread use of performance-enhancing drugs in horse racing threatens the viability, safety, and integrity of the sport. In the 1980s Congress considered banning drugs in horse racing, but ultimately left that decision to individual states.21 Yet, there have been recent calls from owners and organizations for Congress to intervene.
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