More Court Scrutiny For NY Out-Of-Competition Testing Rule

January 11, 2010

On Dec. 30, 2009, The New York State Racing and Wagering Board (NYSRWB, or Board) announced in a press release that, as of two days later (Jan. 1), the Board would be authorized to conduct unannounced drug testing of horses �slated� to compete at New York harness or thoroughbred tracks even when they are stabled away from the tracks.

Based on, but not exactly like, rules already in existence in New Jersey and Delaware, the New York rule has a few unusual provisions, and that has already prompted a lawsuit and a Temporary Restraining Order to stop implementation of the new rule. Standardbred owner Steve Kallas, also a New York City attorney, reviews the rule and the legal scrutiny it is presently receiving.

The recently crafted New York rule on out-of-competition testing, set forth at 9 NYCRR 4120.17, attempt to allow a state racing judge or Board member to have horses stabled away from racetracks tested for various illegal substances. The �testing� area includes a radius of 100 miles from any New York harness or thoroughbred track. In addition, the Board can have tested any horse that is �anticipated� to be racing at a New York track within the next 180 days. Also, the penalties are very severe, with a minimum 10-year suspension for a violation of the drug-testing policies.

But as was reported last week, there has already been a legal challenge. On Thursday, Jan. 7, lawyers on behalf of petitioners Mark Ford, Richard Banca, John Brennan, George Casale and the Standardbred Owners Association of New York Inc. (SOA) appeared before New York State Supreme Court Justice Eileen Rakower in Manhattan to challenge the implementation of the new rules. Justice Rakower signed an Order to Show Cause and a Temporary Restraining Order which bars the Board from immediate drug testing of horses under the new rules.

Lawyers for the Board requested that the case be moved to Schenectady, NY, where the main office of the Board is located. That issue will be decided before Justice Rakower on Tuesday, January 12, in New York City.

So what did the petitioners�Ford, Banca, Brennan, Casale and the SOA--claim to be the problems with the new rule? The petitioners, represented by Andrew Turro, of the firm Meyer, Suozzi, English and Klein, submitted papers to the court setting forth a number of issues with respect to the new rules. The major ones are highlighted below:

1) Unlike in New Jersey, private horse farms are not licensed in New York. Under the new rule, the Board or its representative can enter a private farm in New York without probable cause or a search warrant and test a horse who may or may not actually race at a New York race track;

2) The 100-mile radius rule--Under the new rule, the Board or its representative may test a horse stabled within a 100-mile radius of any New York racetrack. This, of course, would encompass other states (such as New Jersey or Connecticut, for example) and even another country (Canada, as pointed out by Justice Rakower). If outside the state, the trainer and owner must ship the horse to the New York racetrack at the trainer/owner�s expense (an expensive thing in today�s reality).

3) Unlike rules in other states, there is no requirement in the rule for split-samples, which gives the trainer/owner the right to its own sample from the horse which can be tested by an independent lab.

4) The penalty for a first offense is a 10-year suspension.

5) The rule states that even non-licensed (by New York State) people can come under the auspices of this rule.

At the end of the Jan. 7 appearance before Justice Rakower, she stated that the parties would appear before her on Tuesday, Jan. 12. She found enough evidence to sign the Temporary Restraining Order, but also stated that, preliminarily, she thought that the case should be heard in Schenectady.

Justice Rakower stated, �So I do think that the rules are overly broad and that a balance of the equities requires me to stay the enforcement of these rules pending an ultimate decision by the Court in Schenectady.�

Thus, preliminarily, Justice Rakower believes that petitioners have a likelihood of success on the merits of their case, that they would suffer irreparable injury if the law was allowed to be enforced as is and, balancing all of the equities of the case, that the Board should be stopped from enforcing the law as is. It also seems, however, that, absent a change of heart, she will transfer this case to New York State Supreme Court in Schenectady.

There are other issues with the new rule that will have to be dealt with at some point. For example, if the rule is upheld and the Board orders a trainer/owner to produce a horse for testing, if the trainer/owner doesn�t comply, the horse shall be ineligible to participate in racing for 120 days, absent �acceptable mitigating circumstances.�

If, in the case where a horse is not produced for testing, an owner can�t race his horse for four months, that�s tough. He also can�t transfer the horse to another trainer (presumably). But can he sell the horse to a bona fide new owner? Can he �sell� the horse to a friend?

By the way, what happens if a shipper is shipping a horse (pursuant to Board request) from out-of-state and the truck breaks down? Or the trainer says the owner already pulled the horse from his barn and he�s been shipped to a trainer at a farm outside the 100-mile radius? Are either or both of these �acceptable mitigating circumstances?� Right now, we don�t know.

Part of the new rule states that �horses to be tested shall be selected from among those anticipated to compete at New York tracks within 180 days of the date of testing or demand for testing.� How does a judge decide that a horse is �anticipated� to compete at a New York track? If the horse had raced in the past 30 or 60 days (backward-looking and less than 180 days), that might have a better chance to pass muster.

Suppose an owner buys a foreign horse and brings him within 100 miles of a New York racetrack (by the way, is that 100 miles as the crow flies or by roads and highways?). Suppose his trainer has a �bad reputation.� Suppose the owner says, �I don�t anticipate racing him in New York.� Can he be tested?

With respect to the (minimum) 10-year suspension for the first violation, which includes the word �shall� rather than �may,� the only way you can not get 10 years with a positive is to show �extraordinary mitigating circumstances.� What would they be? Does the 100-mile rule mean that someone (or more than one) will build a training track 105 miles from a New York racetrack?

So what is the future of this rule in New York?

You have to give credit to NYSRWB for attempting to do something about blood doping in horse racing. However, some of the new provisions may have to be tweaked, changed or even eliminated to protect the rights of all horsemen and horsewomen. Nobody wants to see an innocent trainer/owner suspended for 10 years for a first violation, and nobody wants to see someone who truly violated the rule escape because the rule had been poorly written.

While the legal axiom �better to let 10 guilty men go free than convict one innocent man� should be given some consideration here, something must be done to stop the prevalence of illegal drugs in horses engaged in racing in New York State and all other states that conduct racing. As we have seen in other sports and in our own, it�s tough to catch the bad guys. So here�s hoping that some form of the new rule and other rules already in place in New York and other states will catch the bad guys and not hurt the good guys and unsuspecting owners.

We�ll see what happens.

Steve Kallas, who covers racing at Yonkers Raceway for The Horseman and Fair World, has been a groom, vet�s assistant, second trainer, trainer, driver and owner in harness racing. He is also a New York City attorney.

« Back