by Frank Vespe
Last Tuesday the Maryland Racing Commission upheld a stewards’ decision not to disqualify Maryland Million Nursery winner Corvus, although that runner had tested positive for the prohibited vasodilator isoxsuprine.
It didn’t take long for the state’s racing community to weigh in.
“It’s all the same, only the names have changed,” wrote one commenter.
“I have serious doubts whether some other trainers without the relationships of Ms. Voss would have been treated the same way,” wrote another.
“I don’t think the public should be as worried about what trainers do but the people who police them,” wrote yet a third.
It had been widely assumed in the Maryland racing community that the the Commission’s aggressive stance on the national uniform medication policy in recent years meant that it had overhauled its drug rules and presaged a new “get-tough” era.
What was revealed at Tuesday’s hearing, however, is that the Commission’s medication rules are very much a work in progress.
“We’re caught in the switches,” said Commission chair John McDaniel in an interview, citing what he termed “old school types of regulations and guidelines and what is evolving.”
“It’s a living document,” added Commissioner David Hayden, also in an interview. “Those change, and they’ll continue to change.”
Why the Commission decided as it did — and what it means for the future of Maryland’s medication program — are complex questions.
But what was made clear Tuesday, and in follow-up interviews, is that the impression of change thus far outstrips the reality. Maryland’s rules for drug rule violations are, in some ways, unchanged in recent years and vaguer than perhaps many would like to see.
MARYLAND’S RULES STILL A WORK IN PROGRESS
Four years ago, Glib, a horse trained by Jerry Robb, won the Maryland Million Nursery but was disqualified by the stewards after it was found to have the anti-inflammatory drug naproxen in its system.
The Maryland Racing Commission subsequently overturned the stewards’ decision and reinstated Glib as the winner because the small amount of naproxen in Glib’s system was deemed to have no “pharmacalogical effect”; in other words, it didn’t enhance the horse’s performance. Then-new Commissioner Bruce Quade provided the only dissenting vote.
A lot has happened in the interim.
Medication policy has become an increasingly important issue in the racing industry. The Association of Racing Commissioners International (ARCI) and Racing Medication and Testing Consortium (RMTC) have developed and promulgated policies designed to provide state-by-state uniformity.
Maryland has been an early, and aggressive, adopter of that national uniform medication program.
And yet last Tuesday — faced for the second time in five years with a Maryland Million Nursery winner with a positive test — the Commission made essentially the same decision once again, allowing Corvus to remain the winner despite the positive. And once again, Quade provided the lone dissenting vote.
That the Commission made that decision — and for essentially the same reasons cited in the Glib case — speaks to one way in which public perception of change in Maryland has gone beyond the actual change.
While the Commission has been one of the quickest out of the gate to adopt a number of the ARCI recommendations — among them, the 26 permitted medications and the multiple medication violation point system — its rules do not mirror those of the ARCI in some important ways.
Corvus was found to have the vasodilator isoxsuprine in its system. That drug — considered a Class 4 medication (therapeutic with a limited potential to affect performance) with a Category C penalty in racing’s complex parlance — is not on the list of permitted medications.
The ARCI recommendations call for a three-part penalty in such a case: a $1,000 fine, disqualification of the horse, and two multiple medication violation points.
Yet Maryland’s stewards assessed Katy Voss, the trainer, a $500 fine and two points. They did not disqualify the horse.
That’s in large measure because, while the two points are mandatory under Maryland’s rules, the rest is up to the stewards’ discretion. And unlike some other areas — such as the points and list of permitted medications — Maryland has not adopted the ARCI-supported language regarding fines and disqualifications.
That point was driven home during testimony by Commission executive director Mike Hopkins.
“Has Maryland adopted as mandatory the ARCI guidelines?” Voss’s attorney, Steve Allen asked.
“No,” Hopkins replied.
“Did [Commissioner Bruce] Quade express the view that they should be treated as mandatory?” Allen then asked.
“Yes,” said Hopkins.
MARYLAND’S RULES STILL VAGUE
As is often the case when rules develop over time, Maryland’s regulations are a bit of a hash — containing pieces that were added at different times to cover different exigencies.
One of the ARCI guidelines that Maryland has adopted is the list of 26 permitted medications. Under the rules, those medications are permitted up to certain thresholds; no other drugs, including isoxsuprine, are allowed in a horse’s system.
Quade argues that that differentiation between threshold and zero-tolerance drugs should matter.
“It’s my opinion there are two types of drugs: threshold drugs and prohibited drugs,” he said in an interview. “This one is prohibited.”
But Maryland’s rules don’t draw that distinction. Positives of drugs not on the list, as well as overages of those permitted, fall into the stewards’ discretion. That discretion allows them to consider mitigating and aggravating factors — such as the substance’s impact on the horse’s performance and the trainer’s record — in determining what punishment to assess.
Some say that leaving such discretion is a desirable tool to allow stewards to develop punishments that fit the crime; others argue that it allows too much leeway for favoritism and questionable decisions.
Adam Campola, the administrative steward, said he reached out to a wide variety of people — among them state veterinarian Dr. David Zipf, RMTC vice chairman Alan Foreman, and his fellow stewards, who are former trainers, and others.
They were unanimous in describing isoxsuprine as therapeutic, Campola said, “and not very effective” in its therapeutic task, with Foreman, who is also general counsel to the Maryland Thoroughbred Horsemen’s Association, adding that an isoxsuprine positive is, in his view, “a finable offense” under Maryland’s current regulatory regime.
Campola also testified that, in about half of similar cases this year, the stewards had imposed a fine rather than a disqualification. When the stewards had disqualified horses, Campola said, it was because they judged that the trainers had “tapped” their horses — that is, injected their joints to remove inflammation — in multiple joints within 10 days of the races.
“We consider that a health and safety issue for horses and riders,” he said.
Maryland Racing Commission hearings are de novo hearings, which means that the Commission is empowered to review matters with a fresh eye. The Commission has the right to overturn the stewards when it believes that body ruled incorrectly or is applying the rules in a manner inconsistent with the Commission’s intent.
There is, in other words, no legal presumption that the stewards were right in their decision.
Nonetheless, given the precedents, at least some members of the Commission placed significant weight on it.
“Once we totally understood that it was at the discretion of the stewards, we gave great weight to [them],” said Commissioner David Hayden. “Why is our discretion better than the stewards’ discretion?”
THE CLOSENESS OF REGULATOR AND REGULATED
Almost as soon as the decision was rendered, some observers cried foul, claiming that Voss received favorable treatment because of her position on the MTHA board and reputation as what Allen, her attorney, called “a straight trainer, a clean trainer.”
Whether that’s true or not, it points to a challenge the Commission faces.
State law requires that three of nine Commissioners be “knowledgeable or experienced in an aspect” of Thoroughbred racing, and three more be similarly qualified in harness racing. While this requirement ensures that a portion of the Commission have substantial understanding of what are often complex issues, it can leave the Commission open to criticism.
The Maryland Thoroughbred industry is small enough that most any breeder or horseman who comes before it — and the connections of both Corvus and appellant Flash McCaul are breeders, as well as horsemen — will likely have long-established personal and business relationships, and may have past or current financial relationships, with some of the Commissioners.
None of which is to suggest that the Commission acted improperly in this, or any, case it has heard. But the closeness of these relationships means that those inclined to support conspiracy theories — and in racing, who doesn’t love a good conspiracy theory? — will often find fertile ground.
Some have suggested that the so-called Barr-Tonko bill, a proposal in Congress that would nationalize drug testing under a new “Thoroughbred Horseracing Anti-Doping Authority,” might provide an answer to this concern, since anyone with a financial interest in racing would be specifically excluded from its board.
Others, however, maintain that that provision essentially eliminates anyone who would have working knowledge of Thoroughbred racing. The bill, which does have support from certain racing organizations, including the Jockey Club and Breeders’ Cup, has scant support from horsemen’s groups or regulators.
“The interpretation of the guidelines has and hopefully always will remain at the state level,” McDaniel said. “This should be a local issue and handled state-by-state.”
CONCLUSION: THE WAY FORWARD
“There are people who believe that Maryland has adopted the ARCI guidelines and are applying them strictly,” pointed out Steve Allen, the attorney.
“I think the perception was we adopted these guidelines as mandatory,” John McDaniel agreed.
That seems to be a fairly widely held, if incorrect, belief. That it is incorrect points to the challenges the Commission faces.
“As far as I was concerned, the drug that was involved was not the question,” said Commissioner Tom Bowman. “I don’t think Katy [Voss] was on trial. I think the system was on trial. The rules as they stand are going to be subject to a great deal of scrutiny.”
Added David Hayden, “I think we learned a lot Tuesday night, and these things will be corrected.”
Looking ahead, McDaniel, the chairman, said that he expects to create a sub-committee of Commissioners and others to tackle the regulations.
“We really felt this was the right decision [in the Voss case] even though we all knew what the perception would be,” he said. “Going forward, the first order of business for the Commission is to delineate these guidelines and to be very, very specific. I’m committed to this as chair.
“We want to narrow the discretionary gap as best we can.”
“The Commission’s got a lot of work, and what it really needs to do is clarify in what circumstances a DQ is required,” he said.