The Case for the Horseracing Integrity Act
William M. Lear Jr.
William M. Lear Jr., Vice Chairman, The Jockey Club

Stuart S. Janney III: Our vice chairman, Bill Lear, is well-versed in legislation and the equine industry. As a prominent trial attorney he has represented countless organizations and individuals in our sport. He knows the law and he knows the horse business. Right now he's going to explain how passage of the Horseracing Integrity Act will benefit every stakeholder in our industry. Bill, thank you.

William M. Lear Jr.: Thank you, Stuart. And good morning to you all. A few years back, two of my law partners were trying a case in federal court in Lexington. One of them was a seasoned, very successful trial lawyer. The other one was a newbie in the courtroom.

As they were getting ready for the trial there was one witness on their side that they were particularly worried about, fearing that on cross-examination he might get himself into real trouble. And sure enough, in the course of the trial, the lawyer on the other side, opposing counsel, began to bore in on this fellow. And he literally started to come apart in front of the jury's eyes and the lawyers' eyes and the judge's. The senior lawyer for our client took out his yellow pad and scratched out a note, folded it in half, handed it to his co-counsel. The younger fellow opened it up and it said, in case you've never had your ass kicked, pay close attention.

I tell you that story, I think for an obvious reason that David Fuscus laid out for us in painful detail. And that is that we have watched as the American Thoroughbred industry has been kicked in the same place, in the same way, and kicked and kicked again over the last eight months. And yet there are still some folks within our industry that do not appear to be paying close attention.

We all now know that things have to change and prominent among them is the way we handle medication regulation in the United States. The goals of the Horseracing Integrity Act are simple and straightforward. We want the cleanest possible sport, we want the safest possible sport, and we want an even playing field.

Now, those of us in this room all know that the misuse of medications is not the sole cause, the primary cause, or even a contributing factor in every catastrophic breakdown. But I can say without fear of contradiction that the misuse of medication, especially medications that suppress pain and allow horses to run that should never be in the starting gate, is a contributing factor in many cases, and I think we all know that as well.

More importantly, again, as David pointed out, we all have to recognize that we are no longer debating solely within the confines of our industry what drug can be given when, how long before a race, how long between different kinds of treatments. Our audience now, our jury of our peers, is not just the organizations and people including many in this room that have been debating those issues for years. We are today subject to the penetrating scrutiny of the public at large and the news outlets that determine what they will see and hear. So we all need to take note. It is the universal public sentiment and the universally accepted public policy in the United States that performance-enhancing drugs have no place in sport. And when you add to that even the remote possibility that it's contributing to the death of our equine athletes, I think we all now understand what the picture looks like.

The recent public outcry has only added a new sense of urgency to that which we have known for years. We have to fix our medication regulation system. And when I say that in this context, I always put system in quotes because what we have is no system at all. We have a patchwork, and a poor patchwork, within all of the different states. Now, we have understood that, we have tried federal legislation is not the choice of first resort for us. We tried with an interstate compact and the leaders of the industry, including most of the organizations you would love to see around the table working together, The Jockey Club, the American Quarter Horse Association, the United States Trotting Association, RCI, the New York State Racing and Wagering Board, the NTRA, Keeneland, the Kentucky Horse Racing Commission, the National, believe it or not, HBPA, worked together in 2009 and 2010 to create the Interstate Racing and Wagering Compact. Kentucky passed it. New York passed it in one house of the legislature. Virginia tried to pass it, but didn't effectively do so. So like that failed motion under Roberts Rules of Order, that compact died for lack of a second. Now they're trying again in the Mid-Atlantic Region and I commend them for the effort.

But the reality is the Achilles heel of interstate compacts is the set of conditions you typically have to put into them to get them passed in the first place. And those are like individual rule opt outs. That was a problem with the first compact. Meaning any state can say, well, the rest of you guys put that in place but we're not going to do it. Or super, super majority voting requirements. The Mid-Atlantic compact has an 80 percent rule. That means one or two states have an effective veto. Or the other thing that both of the compacts had, the ability of a state to withdraw at any time for any reason with or without cause.

So we tried the interstate compact. We tried within the industry under NUMP. Six years ago, NUMP was lost with four components and then added a fifth one for out-of-competition testing.

As you know, the adoption throughout the states has been slow, erratic, and even now, is incomplete. And that's just the initial elements. Every time there's a significant addition to NUMP, that addition has to run the gauntlet of 30-some racing states. Each one with its own set of protocols, processes, administrative rules and regulations. It took six years in California to get third-party Lasix. And there are lots of other examples of that sort of thing.

So where are we with our current system? The unfortunate reality is that we are pretty much in the same place that we were four years ago when Staci Hancock, who I think is here today, the leader of WHOA, asked me for my response to people who were saying then as some of them still are saying today, that the existing system is working just fine. I responded by articulating a series of questions for her. And they were these:

Do we have the same medication rules in place in every racing jurisdiction in the United States or even in all of the major racing states? No.

Do we have the same testing rules and procedures in place in every one of those racing jurisdictions, including best practices out-of-competition testing? No.

Do we have the same procedures and standards in place for laboratories in the same contractual arrangements? And that's really important because the price people are paying for tests varies across the board. Do we have those everywhere and are all the labs accredited to international standards? No and no.

Do we have the same processes for investigation, prosecution, and adjudication of rules violations in all of the racing jurisdictions? Again, no.

Do we have the same system of penalties in place in every racing jurisdiction and is there consistency in the application of those penalties? Meaning does the same offense draw the same penalty in California as it does in New York as it does in Kentucky and Florida? No.

Do we have a system in place that can react quickly and uniformly throughout the nation to address the latest new drug that comes along and is used by those who would cheat to try to beat the system? No.

Do we have a medication regulatory authority in place that can speak with one voice to the authorities of other nations when the need to do so arises, such as was the case I said then recently, with respect to the BHA's new steroid policy. Again, no.

It's not enough to say that, well, the majority of racing starts occur in states that have the same list of permitted and prohibited medications or the same multiple violation rules. That's not national uniformity. If they don't test the same, if they have the same lab contracts, if they don't investigate as thoroughly, if they don't do all those other things, it's not uniformity and it's not sufficient rigor in all probability. We could be uniform and weak and that would be no better than we are today.

Let me give you one recent example from my own state. The Franklin Circuit Court, which is the court of general jurisdiction that has jurisdiction over cases out of the Kentucky Racing Commission, not long ago in a case ruled that the Trainer Absolute Insurer Rule was unconstitutional. The case got appealed. My law firm was actually representing the racing commission in the case. The case got appealed. The Kentucky Court of Appeals overturned it and reinstated the rule. Nevertheless, the Kentucky Racing Commission, probably because they had to know something about how to proceed while the case was going on, they started a rule-making process to add a clause in the regulation, which is now the rule in Kentucky, that potentially allows evidence to mitigate or excuse the violations.

By adopting that rule Kentucky is now at odds with many of the other major racing jurisdictions on a very important point in medication regulation. Now, I don't mention that to criticize the commission. I understand why they did what they did. Nor am I going to tell you what my personal position is on that rule, but I will tell you it makes no sense for Kentucky and other states to have a different rule on something that important regarding medication regulation. And that sort of thing happens time and time again.

Passage of the Horseracing Integrity Act would address all of these deficiencies by combining the world's best anti-doping expertise with deep expertise and experience from within our industry, both on the governing board and in advisory committees. In a private, I want to underline that, a private, nonprofit entity under the umbrella of the Federal Trade Commission, the FTC has among its jurisdictional mandates, free open and fair competition and consumer protection, which is a perfect fit for what we're trying to accomplish.

The legislation also has a mandate to provide due process guarantees to everybody, both in rules promulgation and in adjudications, the ability to react quickly, forcefully, and on a nationwide scale to address the next bad thing that comes up in medication. And we all know that more of those are coming.

It also provides an avenue for partnering with state regulators through contract to delegate the implementation of key parts of this legislative program, but all with the same processes, protocols, and rules.

And perhaps most importantly, the legislation is founded upon the unremarkable proposition that the regulatory authority should be controlled by independent persons with deep knowledge of the subject matter, both anti-doping and horse racing, but with no conflicts of interest and nothing to gain or lose personally as a result of the regulations adopted.

Returning now to the position in which we find ourselves in the eyes of the public, we are facing an existential threat. I want to digress, and just to offer one example of that. Within the last three weeks I've had two separate conversations with long-time successful breeders who were giving serious, serious thought to having to sell their farms if something doesn't happen quickly and effectively soon.

So we are facing an existential threat. If our response to that threat is or even appears to be business as usual, we're going to lose. We're going to have no chance of fending off the same people that did away with the circus, that did away with dog racing in Florida because they have their sights on us.

Albert Einstein once said his definition of insanity is doing the same thing over and over again and expecting different results. A Kentucky county judge that I once talked to about a different sort of reform said essentially the same thing in more down-to-earth but equally eloquent terms when he said to me, if we keep doing what we're doing, we'll get what we got.

And that was about the accent, too.

We all know that we need to change what we're doing. And the battle we're waging for the hearts and minds of the public, passage of meaningful reforms, will be critical. The HIA represents true reform and because of that, as you've seen, it's supported not just by industry key players like the Breeders' Cup, TOBA, KTA, Keeneland, WHOA, The Jockey Club, but also, thank you, Valerie, by the Humane Society of the United States, the American Society For the Prevention of Cruelty to Animals and a number of other animal welfare organizations. They're all part of the Coalition for Horse Racing Integrity.

We are moving forward. Notwithstanding what you might have heard from some folks, we are moving forward with this legislation. We have bipartisan-sponsored companion bills in both houses of Congress. We have 137 co-sponsors in the house. Now that we have got a Senate bill, we'll pick up co-sponsors there, and we're going to pick up more in the House soon.

We have widespread support, but there's a lot of room at the table for others to pitch in, and they're meaningful rules for horsemen's groups, for RCI, and for others not yet on board to play.

I'll just leave you with this word. We are in a crisis. I think we all know that. It threatens the very existence of our sport. Many people believe that they are staring at the abyss. The future of Thoroughbred racing and breeding is at stake. We have to do more to protect our athletes. We have to do more to get the cheaters and the abusers out of our sport. And there is a path forward. The HIA represents that path. It can put us on the road to not just recovery, but prosperity, if we will all join in. Thank you.

Stuart S. Janney III: Thank you very much, Bill. I don't think we can pass by the Horseracing Integrity Act without recognizing the Congressman who has done so much in this regard. He also happens to be the Congressman from this district. We owe him an enormous debt of gratitude. Paul Tonko.

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