Maryland: Regulatory anarchy?

U.S. Sen. Tom Udall of New Mexico and Kentucky Congressman Ed Whitfield, sponsors of legislation that would provide federal oversight of medication rules for horse racing, don't have to travel very far from Washington, D.C., to discover the kind of lax and often fuzzy regulations their bill is designed to end.

Recent events at Laurel Park in Maryland – just north of our nation's capital – help define the problem horse racing has with its current regulatory structure.

This past week we learned in a hearing before the Maryland Racing Commission how a systematic breakdown in the adherence to the rules of racing – not just by a trainer and private veterinarian but by people employed by the commission – led to a horse that should have been scratched running and winning a race at Laurel Park in January. The winner was later disqualified.

Last week, in a separate hearing before the Maryland commission, a previously disqualified horse was reinstated as the winner because of a difference of opinion over what constituted a “positive” drug test.

Interestingly, the biggest beneficiaries in both rulings were the connections of Glib, a 3-year-old Maryland-bred daughter of Great Notion owned by jockey agent Gina Rosenthal's No Guts No Glory Stable and trained by John J. Robb. Glib finished first by 4 1/2 lengths in the $100,000 Maryland Million Nursery Stakes on Oct. 1 but was subsequently placed last after a post-race urine sample was flagged as positive by Maryland's official lab for the presence of the anti-inflammatory Naproxen.

Two months later, on Dec. 17, Glib finished second in the Maryland Juvenile Championships Stakes, also at Laurel, 1 1/4 lengths behind King and Crusader, who traveled by van on the day of the race from New York for trainer Rick Dutrow and owner James Riccio. Glib was elevated to first place after a protest led to the disqualification of King and Crusader when it was determined the horse arrived late to Laurel and was treated with the anti-bleeder medication furosemide less than two hours before the race, a violation of Maryland rules.

In separate hearings over the last 10 days, however, the disqualification of Glib from the Maryland Million was reversed, meaning his owner got to keep the $57,000 in first-place money, while the disqualification of King and Crusader was upheld, meaning No Guts No Glory got to keep the $45,000 winner's share of the Maryland Juvenile Championship.

In ruling to reverse the Maryland Million DQ, it was determined the amount of Naproxen in the horse's system “did not have any pharmacological effect,” Maryland Racing Commission executive director J. Michael Hopkins told the Paulick Report. Under the rules, Hopkins said, stewards “may” disqualify a horse that tests positive for a prohibited drug.  Those rules also mean stewards “may not” disqualify, which in this case they decided not to do.

Robb, however, was fined $500 for the positive test.

Alan Foreman, who represented the connections of Glib, said the “new” director at Maryland's test lab (he was hired in 2006) changed the protocol for calling positives for Naproxen, using urine instead of blood plasma, which Foreman said was an industry “best practice.”

Foreman, incidentally, does not see any conflict of interest in his role as general counsel for the Maryland Thoroughbred Horsemen's Association while also practicing private law and representing one MTHA member against another.

“There is no conflict, and it's been discussed and confronted for years, probably since 1983,” said Foreman. “When I represent MTHA I represent them on matters of interest to them. On individual matters, the MTHA is not involved.”

Foreman also represented Glib's connections in the Maryland Juvenile Championship controversy, in which it came to light that state veterinarian Dr. David Zipf apparently was either unaware of or knowingly had not been following Maryland regulations on the administration of furosemide.

According to testimony, Dutrow called the Laurel stakes coordinator and Zipf to inform them of a traffic tie-up on I-95 that meant King and Crusader would be late to arrive at the track. According to testimony, Dutrow asked about the rules pertaining to a furosemide shot. “I did explain to (Dutrow) that we didn't have specific rules but we did have recommended procedures,” Zipf told Joseph Poag, a Maryland Racing Commission investigator.

However, the rules of Maryland racing (below) seem quite specific:

Race Day Administration of Lasix.
(1) A horse scheduled to race that is permitted to use Lasix shall be administered Lasix by a veterinarian licensed by the Commission before the running of the race unless, under §G of this regulation, the horse has been declared off of Lasix by its owner or trainer.
(2) Post-Race Quantitation. As indicated by post-race quantitation, a horse may not carry in its body at the time of the running of a race more than 100 nanograms of Lasix per milliliter of plasma.
(3) Reports.
(a) The veterinarian who administers Lasix to a horse scheduled to race shall prepare a written certification indicating:
(i) That Lasix was administered; and
(ii) If applicable, each adjunct medication that was administered.
(b) The written certification shall be in the possession of a designated Commission representative at least 1 hour before the horse is scheduled to race.
(c) The stewards or judges shall order a horse scratched if the written certification is not received in a timely manner

No Lasix report was filled out and given to a designated commission representative for King and Crusader (or, apparently, any other horse in the race). In fact, during testimony, Zipf admitted that because of a manpower shortage the reports are no longer completed and handed in, as required under Maryland racing rules. Zipf said Hopkins told him to “do the best we can.”

Brian Delp, the veterinarian who treated King and Crusader, said it is not unusual for horses to arrive late and be given furosemide after the two-hour cutoff. “I didn't give it a second thought,” Delp was quoted by the Baltimore Sun as saying. “I know horses have arrived late, been treated and allowed to race without repercussions … I wasn't in violation in my mind.”

Drew Mollica, the former jockey agent turned attorney who represented King and Crusader's owner, wrote in his brief to the commission, “This statement alone is indicative of the complete regulatory anarchy that reigns on the backstretch at Laurel Park and all racetracks under the control of the Maryland Jockey Club on a daily basis.”

But the racing commission members voted to uphold the disqualification of King and Crusader. Hopkins denied to the Paulick Report that it was “selective enforcement” of the Lasix rule, adding that he was unaware Lasix reports were no longer being used.

“This case was brought to our attention, and we addressed it,” said Hopkins. “This was the first time it's come up. I was under the impression the (Lasix report) program was in place. That one got by them. When this happened, I met with the stewards and with my vet to implement a program to prevent this from happening again.”

Mollica said Dutrow is being treated like a “human piñata” by racing commissions but should not be “utilized as a scapegoat for the foibles of the racing officials and those under their direct supervision on duty at Laurel Park on the date in question, and at other times.” Mollica said racing officials facilitated the breach of the furosemide administration rules through a “comedy of errors” that included not even having a record as to when King and Crusader arrived in the track's stable area.

“The conduct of racing regulation at Laurel Park on at least Dec. 17, 2011, if not at all other times, was akin to that on a pirate ship and, while Mr. Dutrow may be suitably designated as a deckhand, the troika of captains and duly licensed subordinates of this wayward vessel are fully and completely responsible for the mayhem that resulted in the hours immediately prior to and following the race in question.”

Click here to read the hearing brief on behalf of James Riccio before the Maryland Racing Commission.