DRF: Motion ruling could impact absolute-insurer statute

[Andy Asaro]

https://twitter.com/DRFHegarty/status/900030402827399169


http://www.drf.com/news/motion-ruling-could-impact-absolute-insurer-statute

LEXINGTON, Ky. -- A state court in Kentucky has ruled that the absolute-insurer rule enforced by the Kentucky Horse Racing Commission violates the state constitution, a determination that could have far-reaching consequences in the regulation of medications and drugs across the United States.

The ruling, signed by Franklin Circuit Court Judge Thomas Wingate on Aug. 15, involved an appeal by the trainer H. Graham Motion of a penalty handed down by the commission for a positive of a trace amount of the regulation muscle relaxant methocarbomol in a horse that raced at Keeneland in the spring of 2015. The ruling’s first sections overturned the KHRC’s imposition of an initial penalty for the positive, but its last section could prove the most contentious due to its assertion that the absolute-insurer rule does not provide a trainer with adequate due-process protections.

[dilanesp]

If it stands it would be terrible for racing. Nothing in Kentucky surprises me, of course.

I will say this. In my mind the trainer responsibility rule is fine because nobody has the right to be a trainer, and because of the compelling interests in protecting horses.

But there are definitely due process and administrative law precedents in some states that, if applied to horse racing, could invalidate it.

[SuperPickle]

Graham Motion may have just ruined horse racing.

[Andy Asaro]

The guy is just sticking up for himself instead of laying down. Everything I know he's one of the good guys. Everyone wants due process for themselves but not for some people.

And it anyone thinks improved testing is gonna work forget it. The people who have the money and know how to cheat with undetectable treatments are gonna keep doing it and getting away with it. Guys like Motion who play it straight are gonna get caught for minor offenses that could be the result of cross contamination, sabotage, or whatever.

It's a problem that won't be solved no matter how much money we spend on testing.

[dilanesp]

The guy is just sticking up for himself instead of laying down. Everything I know he's one of the good guys. Everyone wants due process for themselves but not for some people.

The issue isn't that trainers shouldn't have due process. It's what process is due.

Should a trainer be able to appeal a suspension because the drug test is faulty, or the drugs weren't in the horse's system? Sure. Should there be a process for doing that which is fair and which allows the trainer the right to counsel. Absolutely.

But what the absolute insurer or trainer responsibility rule does is remove one defense that absolutely every dishonest trainer would use if they could, which is "I didn't know how it got there" or "my staff must have put it in".

There are many situations where you are responsible for things because they are deemed to be within your control. Parents have to pay the judgment when their kids commit an intentional tort. If your car rolls down a hill because the parking brake fails, you are responsible for whatever it hits. Manufacturers are strictly liable for manufacturing and design defects in their products, whether or not they were negligent. And employers are basically strictly liable for torts committed by employees in the scope of their employment.

The trainer is supposed to be the caretaker of the horse, who is a live animal. Part of that role is to keep drugs out of the horse's system. Not just the ones the trainer approves, but any drugs that are snuck into the barn by outsiders, or introduced by staff members that the trainer hires.

In my mind, as I said, there's no due process violation here-- just a rule that pins liability on the person most able to prevent drugs from being introduced into the horse.

But i do concede that under some states' due process precedents, the result could be different.

[ReplayRandall]

And it anyone thinks improved testing is gonna work forget it. The people who have the money and know how to cheat with undetectable treatments are gonna keep doing it and getting away with it.

if you punish hard enough, like they do in Hong Kong, drug cheats would think twice before doing the dirty deed.....I know, lifetime banishment is a hard thing to enforce in a dying US game, but you have to make a final stand on this issue at some point.....Might as well be NOW.

[Andy Asaro]

Nobody has a workable solution and a precedent setting ruling like this one may be was bound to happen.

IMO Jorge Navarro is about as guilty of cheating as anyone I've ever seen but there is no proof. Most guys just aren't dumb enough to be caught on camera bragging about it.

I don't have a solution but I don't see a workable solution from anyone else either. Between the powers that be making it increasingly difficult for those like me to gamble at retail take and have a chance and the medication debate and the outdated tote system the whole thing has gone from the most fun EVER to constant aggravation. And, there doesn't seem to be any indication that things will get better in the next five years.

[dilanesp]

I honestly think the biggest problem is legal Lasix. Because despite what horsemen claim, it's a big-time masking agent. It's barred in basically every human sport because of that. And it's barred in the rest of the world in racing because of that.

If horsemen couldn't use Lasix, they would suddenly be unable to use a bunch of other things that they are currently using that are masked by the Lasix and don't show up in tests.

I also agree with RR's arguments about length of suspensions. Track and field gives you 2 years for a first offense and a lifetime ban for a second offense. Baseball is weaker but gives you half a season for a first offense and a full season for a second offense.

Consistent application of harsh punishments would change the calculus a lot.

[HalvOnHorseracing]

The Motion case was more complicated than it may seem from reading the short summaries in the Bloodhorse, DRF or Paulick. This was the full story on the RMTC setting of the methocarbamol standard.

http://halveyonhorseracing.com/wp-admin/post.php?post=4123&action=edit

I think even trainers understand the need for an absolute insurer's rule and I can tell you Motion's issue was mainly that he never had a chance to defend himself. As far as I can see, the judge went much farther in terms of a decision on the absolute insurer's rule than Motion was expecting.

If Motion deserved to win the case, it should have been because the methocarbamol standard was arbitrarily low, especially given the flaws in the study used to set the standard. Motion won because the KHRC didn't follow the law that required thresholds to be based on sound science. The court wrote, "In this case, the record lacks for substantive evidence to show any rationale for the imposition of a threshold of 1.0 ng/ml of methocarbomol."

The absolute insurer's rule isn't going away entirely. I have my ideas of what will happen, but I'm anxious to see what the amendments to the rule will look like.

[onefast99]

I honestly think the biggest problem is legal Lasix. Because despite what horsemen claim, it's a big-time masking agent. It's barred in basically every human sport because of that. And it's barred in the rest of the world in racing because of that.

If horsemen couldn't use Lasix, they would suddenly be unable to use a bunch of other things that they are currently using that are masked by the Lasix and don't show up in tests.

I also agree with RR's arguments about length of suspensions. Track and field gives you 2 years for a first offense and a lifetime ban for a second offense. Baseball is weaker but gives you half a season for a first offense and a full season for a second offense.

Consistent application of harsh punishments would change the calculus a lot.
Isn't Kentucky the same great state that brings us the NCAA rules and regulations? Reading all of this reminds me of the same issues in colleges across America today, insert Coach for trainer.

[HalvOnHorseracing]

The issue isn't that trainers shouldn't have due process. It's what process is due.

Should a trainer be able to appeal a suspension because the drug test is faulty, or the drugs weren't in the horse's system? Sure. Should there be a process for doing that which is fair and which allows the trainer the right to counsel. Absolutely.

But what the absolute insurer or trainer responsibility rule does is remove one defense that absolutely every dishonest trainer would use if they could, which is "I didn't know how it got there" or "my staff must have put it in".

There are many situations where you are responsible for things because they are deemed to be within your control. Parents have to pay the judgment when their kids commit an intentional tort. If your car rolls down a hill because the parking brake fails, you are responsible for whatever it hits. Manufacturers are strictly liable for manufacturing and design defects in their products, whether or not they were negligent. And employers are basically strictly liable for torts committed by employees in the scope of their employment.

The trainer is supposed to be the caretaker of the horse, who is a live animal. Part of that role is to keep drugs out of the horse's system. Not just the ones the trainer approves, but any drugs that are snuck into the barn by outsiders, or introduced by staff members that the trainer hires.

In my mind, as I said, there's no due process violation here-- just a rule that pins liability on the person most able to prevent drugs from being introduced into the horse.

But i do concede that under some states' due process precedents, the result could be different.

In talking with Motion, I don't remember him ever suggesting trashing the AI rule. He clearly admitted he had dosed the horse with methocarbamol, but that something must be wrong with the standard if seven days wasn't enough to meet an RMTC standard that was supposedly based on a 48 hour clearance time.

I believe the due process issue was that he was not allowed to speak in his own defense, nor was he allowed to offer any expert testimony.

[Redboard]

I'm not surprised. There’s a lot of blame that can go around as far as who is responsible for the sport going from the third most popular in the country (behind baseball and boxing) , to one that’s just behind girls high school field hockey, but, I would put Kentucky at the top of that list. This is the same state that banned Lasix-free races. Here is a quote by Frank R. Scatoni from his book “Six Secrets of Successful Bettors”: “Kentucky is so liberal in their drug laws that people don’t even need to cheat to change a horse’s performance dramatically. They got approximately 16 drugs that are legal there that aren’t legal elsewhere, and they always defend it fiercely when anybody tries to do anything that’s better for the horse. But they don’t consider that they have bettors out there that find their races too difficult to bet and won’t bet their races. The last thing that racetracks ever think about is the customer, the bettor, and Kentucky is number one area in the country that says to hell with the bettor.”

[dilanesp]

If Motion though the standard was too low, he should have challenged it BEFORE the race.

There's no reason to allow people to gamble they won't get caught and then challenge th threshold after they do. That procedure incentivizes doping.

[Track Phantom]

I understand the Absolute Insurer idea but if the penalty was say a lifetime ban, would that encourage others to do something nefarious to get a certain trainer out of the way?

For example, if trainer A had 70% of the horses for a prominent owner and trainer B had 30% of the remaining horses for that owner (and assume not the higher quality), wouldn't it behoove him to have trainer A "out of the way" to increase his pipeline of good horses?

I know that is tinfoil-hat thinking but is it such a stretch to think someone affiliated with trainer B couldn't sneak into a the barn of trainer A and inject a horse with something?

How do you protect against that?

[dilanesp]

I understand the Absolute Insurer idea but if the penalty was say a lifetime ban, would that encourage others to do something nefarious to get a certain trainer out of the way?

For example, if trainer A had 70% of the horses for a prominent owner and trainer B had 30% of the remaining horses for that owner (and assume not the higher quality), wouldn't it behoove him to have trainer A "out of the way" to increase his pipeline of good horses?

I know that is tinfoil-hat thinking but is it such a stretch to think someone affiliated with trainer B couldn't sneak into a the barn of trainer A and inject a horse with something?

How do you protect against that?

The basic answer is that if that becomes a problem, AT THAT TIME you consider a modification to the rule. Or you create a narrow exception for that situation.

Or you might even not change it at all, and tell Trainer A to hire security guards and put cameras in the barn.

The problem is, the far, far, far more common scenario is a doping trainer who claims that someone drugged the horse, rather than your scenario. And therefore, making your scenario the central situation to be avoided would just empower the dopers and cheaters.

[Fager Fan]

In talking with Motion, I don't remember him ever suggesting trashing the AI rule. He clearly admitted he had dosed the horse with methocarbamol, but that something must be wrong with the standard if seven days wasn't enough to meet an RMTC standard that was supposedly based on a 48 hour clearance time.

So, isn't that the same argument that Ellis could've used on his sprinter?

Isn't that the same argument that any trainer could make? Sure, I gave it to him, but I gave it on X date so he should be clear by now. That's a problem. How do we know with absolute surety that the drug was given on X date? Because the vet and/or trainer say so? Maybe he was, maybe he wasn't, maybe he was but they gave another dose later.

Unless it's a third party vet who reports all meds daily to a track's central med record-keeping system, then this is quite flawed as I see it. What proof exists for when a dose was given and the exact measurements of that dose?

[Andy Asaro]

Legal Docs Attachment

[HalvOnHorseracing]

So, isn't that the same argument that Ellis could've used on his sprinter?

That is one of two related arguments that trainers have made. Very simply, if the RMTC sets a threshold, aren't they telling the trainers, if you follow this guideline you should not have a problem with the post race test? In my opinion the standard was poorly set anyway. If you read the history, it was recommended by the people who did the testing at 20 ng/mL. But because Pennsylvania had already adopted 1 ng/mL and 48 hours, the Science Advisory Committee discarded the recommendations of the scientists. The whole thing was a cluster.

In Ellis' case, he KNEW his horse was still testing positive three days before the race and ran him anyway. But in the sense that the had a level of stanozolol that would have no impact on raceday there were similarities. That was the other trainer argument. Set the threshold at a level where anything above the threshold is going to have a performance enhancing effect. 2.9ng/mL of methocarbamol would have had no real performance enhancing effect.

Isn't that the same argument that any trainer could make? Sure, I gave it to him, but I gave it on X date so he should be clear by now. That's a problem. How do we know with absolute surety that the drug was given on X date? Because the vet and/or trainer say so? Maybe he was, maybe he wasn't, maybe he was but they gave another dose later.

Unless it's a third party vet who reports all meds daily to a track's central med record-keeping system, then this is quite flawed as I see it. What proof exists for when a dose was given and the exact measurements of that dose?
In this case the vet was Jeff Blea, one of the most highly respected equine veterinarians. His records were used to determine when the last dose was given before the race, and it was seven days prior to the start. Blea is no second rate vet. Unless someone snuck in and stuck the horse (which no one contended), Blea's records were the best information available, and no one contended they had been falsified.

The bottom line is simple. There is no way Motion's horse should have tested positive if it was given the recommended dose and seven days to clear the system if the RMTC standard was right. The whole situation stunk and from my perspective, RMTC was a lot more to blame than Motion.

[Fager Fan]

That is one of two related arguments that trainers have made. Very simply, if the RMTC sets a threshold, aren't they telling the trainers, if you follow this guideline you should not have a problem with the post race test? In my opinion the standard was poorly set anyway. If you read the history, it was recommended by the people who did the testing at 20 ng/mL. But because Pennsylvania had already adopted 1 ng/mL and 48 hours, the Science Advisory Committee discarded the recommendations of the scientists. The whole thing was a cluster.

No, a threshold is an allowance being made other than zero tolerance, but the guideline is just that, a guideline. Everyone knows that humans and animals all react different to medications so there is a risk when you give meds, how you go about being as careful as possible to not test positive is up to the trainer.

In Ellis' case, he KNEW his horse was still testing positive three days before the race and ran him anyway. But in the sense that the had a level of stanozolol that would have no impact on raceday there were similarities. That was the other trainer argument. Set the threshold at a level where anything above the threshold is going to have a performance enhancing effect. 2.9ng/mL of methocarbamol would have had no real performance enhancing effect.

A positive is a positive. We can't now allow trainers to say, well, it was a positive but it had no effect. Particularly after they're busted. Change the threshold level beforehand if need be.

In this case the vet was Jeff Blea, one of the most highly respected equine veterinarians. His records were used to determine when the last dose was given before the race, and it was seven days prior to the start. Blea is no second rate vet. Unless someone snuck in and stuck the horse (which no one contended), Blea's records were the best information available, and no one contended they had been falsified.

How would anyone be able to prove they were falsified? This shouldn't be about one's reputation. The rules of what is a positive should be applied equally to all. Racing can't just decide that they'll believe Blea's records but not another vet's records. It's a broken system of proof when we are relying on when a vet says he gave the horse a medicine. That's far from proof.

The bottom line is simple. There is no way Motion's horse should have tested positive if it was given the recommended dose and seven days to clear the system if the RMTC standard was right. The whole situation stunk and from my perspective, RMTC was a lot more to blame than Motion.

Maybe, maybe not. I like Motion, and think he's a straight arrow, but we shouldn't be issuing guilt and innocence on someone based on our opinion of the person. The horse tested positive. We have no proof that the horse was dosed 7 days out or its specific dosage.

I don't agree with letting Motion off the hook. It is what it is. Even a straight arrow can get some minor drug positives.

[carterista]

I can only hope that Jorge Navarro moves his 'stuff' to Laurel---that should make Motion happy.

[thespaah]

This is not a good situation.
Some one MUST be the the person where the buck stops.
Wiht this ruling, any trainer or other licensed individual questioned or accused could simply use the "I didn't know" defense and leave any racing jurisdiction powerless to suspend, revoke or otherwise discipline unscrupulous individuals.
Yes, "absolute" may seem draconian, but IMO someone has to have the responsibility of "Captain of the boat"..

[Spalding No!]

In my opinion the standard was poorly set anyway. If you read the history, it was recommended by the people who did the testing at 20 ng/mL. But because Pennsylvania had already adopted 1 ng/mL and 48 hours, the Science Advisory Committee discarded the recommendations of the scientists. The whole thing was a cluster.
The 20 ng/mL threshold was for a 24 hour withdrawal. That would have gone against most jurisdictions' rules regarded the medicating of entered horses (the "48 hour rule"). Basically, by adopting that standard, Robaxin would have become a permitted raceday medication ala Bute and Lasix.

In this case the vet was Jeff Blea, one of the most highly respected equine veterinarians. His records were used to determine when the last dose was given before the race, and it was seven days prior to the start. Blea is no second rate vet. Unless someone snuck in and stuck the horse (which no one contended), Blea's records were the best information available, and no one contended they had been falsified.
That's a California veterinarian. The horse was training in Maryland and racing in Kentucky. The last time the horse was in California at the time of the Bewitched Stakes was something like 4 or 5 months. It seems unlikely that he was even in a position to dispense the medication never mind actually examine the filly in person.

The bottom line is simple. There is no way Motion's horse should have tested positive if it was given the recommended dose and seven days to clear the system if the RMTC standard was right. The whole situation stunk and from my perspective, RMTC was a lot more to blame than Motion.
This ignores the possibility that Motion is incorrect in asserting that his horse did not receive Robaxin within his arbitrary 7-day cutoff. How could this possibly be verified?

[dilanesp]

Fager is right.

If a drug testing agency says "no more than 10 units of cheatazol", they aren't actually saying "go ahead and use cheatazol, but just don't use an amount that will cause more than 10 units to show up on the test".

Rather, they are saying "no matter what you do, if more then 10 units show up, you're toast".

And trainers are pretending not to understand that.

[Fager Fan]

Spaulding, I wondered about Blea too, as I knew he is a CA vet.

[Andy Asaro]

https://twitter.com/racetrackandy/status/901142586903060481

[dilanesp]

https://twitter.com/racetrackandy/status/901142586903060481

From Andy's linked story:

“There’s case law in nearly every state, going back decades,” said Alan Foreman, the chairman and chief executive for the Thoroughbred Horsemen’s Associations and an expert on racing law. “You’d have to litigate in each one of those jurisdictions. You’d have to re-litigate the question each time.”

The more I look at this, the more I think this case is the analogue of Jack Weinstein's decision a few years ago that would have exempted online poker from the federal illegal gambling statute. It got a big buzz, but it was going against literally decades of cases going the other way, and it quickly got reversed with little fanfare.

Courts that get out on this particular limb (50 years of cases are all wrong and I'm right) don't tend to see their decisions upheld very often.