HISA fires back at Vienna’s claim it is in a ‘war against owners’

Firing back at a California lawyer and former trainer who declared federal regulators are waging a “war against owners,” executives with the Horseracing Integrity and Safety Authority and Horseracing Integrity & Welfare Unit declared Monday’s broadside to be “recently published misinformation.”

In their joint statement that was emailed late Tuesday afternoon, HISA CEO Lisa Lazarus and HIWU executive director Ben Mosier said, “The clearly defined penalties for banned substances are meant to protect the health and safety of horses as well as the integrity of the competition.”

Without saying so specifically or using any names, Lazarus and Mosier responded to an open letter Monday from Darrell Vienna, an attorney from California who trained horses from 1976 to 2016, including four Grade 1 winners. The National Horsemen’s Benevolent and Protective Association, the leading critic of HISA, sent Vienna’s letter.

“Horse owners are being or will be deprived of their constitutional right to the use and enjoyment of their property,” Vienna said. “If the initial sample collected from a horse tests positive, the horse may be declared ineligible to race for the horse’s lifetime without any opportunity for the owner to be heard or present evidence. There presently is no review process for the owner under HISA rules.”

Lazarus and Mosier begged to differ, saying, “Following an initial positive, lab result for a banned substance, under the (anti-doping and medication control) rules, the owner of a horse has the exact same rights to be heard and to present evidence as the trainer.”

Vienna declared the “imposition of ineligibility on the horse is simply an unreviewable punitive action against horse owners that endangers the health and safety of horses while at the same time being euphemistically labeled by HISA as a measure to promote ‘horse welfare.’ ”

Lazarus and Mosier said their response was made to “reiterate our commitment to due process under HISA regulations.”

These were the statements:

Attorney and former trainer Darrell Vienna on Monday via the National Horsemen’s Benevolent and Protective Association

As HISA continues to modify and revise various parts of its rules*, one critical area has been allowed to continue its destructive effect on horse owners and their horses. This harmful oversight needs to be modified immediately. Or better yet, yesterday.

Under current HISA rules, horse owners are being or will be deprived of their constitutional right to the use and enjoyment of their property. If the initial sample collected from a horse tests positive, the horse may be declared ineligible to race for the horse’s lifetime without any opportunity for the owner to be heard or present evidence. There presently is no review process for the owner under HISA rules.

HISA rules provide for sanctions against both individuals as covered persons and horses as covered horses. A covered horse is any horse that participates or engages in a workout or participates in races in jurisdictions governed by HISA. A horse which tests positive for certain substances or has been subjected to certain prohibited methods may be excluded from racing for period ranging from one month to life.

This exclusion from racing, which HISA calls a period of ineligibility, travels with the horse. Changing trainers or owners does not lift the ineligibility. The owner does not receive a hearing to challenge the decision, a decision that interferes with the use and enjoyment of his or her property. If the horse tests positive, and the split sample is waived or confirms the initial finding, the horse may, depending on the substance detected, be rendered ineligible for the rest of its life.

Consider the following:

Scenario 1. A weanling is administered a bisphosphonate, a drug used off-label for treatment of sesamoiditis, by a farm veterinarian. The weanling is later purchased at auction by a first-time, racehorse owner. The horse is raced for the first time as a 2-year-old. The horse wins a race, and the bisphosphonate is detected in the post-race sample. The science is clear. Once a horse has been treated with bisphosphonates, the substance may be detected for years. Pursuant to HISA rules, not only is the horse disqualified from the race, the horse can never race again, because HISA has adopted rule 4310, which provides that the detection of bisphosphonates in any horse results in a lifetime ban despite a lack of any evidence that the presence of bisphosphonates actually places horses at greater risk of injury.

Scenario 2. At the end of a race meeting, a trainer prepares to move his horses to race in another state. He is assigned stalls that are pre-bedded with straw by a feed company. One of the employees of the feed company takes metformin for diabetes, the third-most commonly prescribed medication in the United States with more than 92 million prescriptions. This feed-company employee relieves himself in the corner of one of the freshly bedded stalls. Days later the trainer puts one of his horses in the stall in which the metformin-taking, feed-company employee urinated. The horse ingests some contaminated straw with his hay, causing a positive test in a post-race sample. The trainer is suspended, and the horse is ineligible to work or race for a period of up to 14 months.

The owner who had no knowledge of the source of the prohibited substance is, without recourse or hearing, deprived of the use of his racehorse. Depending on the value of the horse, the owner may decide to sell or give the horse away. Since the horse has limited or no eligibility to race, its value is significantly diminished. What happens to these horses that are ineligible to race? Some may be retrained as riding or show horses. Some may end up in unsanctioned match races. However, others may end up in killer pens awaiting slaughter.

HISA officials have claimed that this rule is intended to promote horse welfare. Lisa Lazarus, CEO of HISA, has been recently quoted as saying, confusingly, that this rule is based on the length of time it takes for a substance to exit a horse’s system.** Nothing could be further from the truth. This imposition of ineligibility on the horse is simply an unreviewable punitive action against horse owners that endangers the health and safety of horses while at the same time being euphemistically labeled by HISA as a measure to promote “horse welfare.”

Let’s say, instead, that the owner chooses to keep the horse and race it after the 14-month ineligibility period is over. Research has shown that horses that do not engage in high-speed exercise for 30 days or more are at higher risk of fatal injury than horses that are in full training. The 14-month ineligibility period actually places these horses at higher risk of injury. The HISA argument of protecting horses is fallacious.

The obvious solution to this situation is to offer every owner a full review mechanism which comports with due process. Further, the horse’s ineligibility should end as soon as the horse passes subsequent testing. In the meantime, if you are an owner, whether or not you have already been directly affected by this rule, you should voice your most serious objection to this harmful and unconstitutional power play by a clearly unaware HISA.

*HISA rules are little more than a conglomeration of cut and pastes from the rules of the Fédération Equestre International, a European-based association which deals with Olympic horse competitions.

**Ms. Lazarus is obviously trying to obfuscate the issue of a pharmacologically effective drug to the irrelevant possibility that benign remnants of a drug may show up in hair. Horsemen should not stand for this underhanded misdirection.

Horseracing Integrity and Safety Authority CEO Lisa Lazarus and Horseracing Integrity & Welfare Unit executive director Ben Mosier on Tuesday

In response to recently published misinformation regarding owners’ rights under the HISA anti-doping and medication control program, HISA and the Horseracing Integrity & Welfare Unit are compelled to again set the facts straight and reiterate our commitment to due process under HISA regulations.

Following an initial positive, lab result for a banned substance, under the ADMC rules, the owner of a horse has the exact same rights to be heard and to present evidence as the trainer. Like the trainer, the owner can request the B sample be tested, even if the trainer doesn’t make this request. This has already occurred several times under the ADMC program. The owner is also entitled to a provisional hearing to request the lifting of the horse’s suspension and is entitled to participate in the hearing to argue on behalf of the horse and present evidence and make arguments.

The clearly defined penalties for banned substances are meant to protect the health and safety of horses as well as the integrity of the competition. The only banned substance that can trigger a lifetime ban for the horse is bisphosphonates. HIWU has communicated extensively about the use of and sanctions for bisphosphonates, which are only applicable to horses that were administered bisphosphonates after May 22, when the ADMC rules went into effect.

Multiple owners advocated during the ADMC rulemaking process for the lifetime ban for bisphosphonates because of the substance’s ability to affect bone metabolism and thus increase the risk of fracture for months to years after administration. Many stables across the country pre-tested their horses ahead of May 22 to ensure compliance, and HIWU has yet to receive any positive tests for the substance.

Prior to a horse receiving a lifetime ban for bisphosphonates, a covered person connected to the horse – a trainer or an owner – has the ability to request the B sample be tested, receive a provisional hearing and proceed through the ADMC adjudication process. This includes an investigation to assess when the administration occurred. If there is evidence that the administration occurred prior to the implementation of the ADMC program, no violation will be pursued.

For many banned-substance cases, the affected horse is suspended for two months from the date that the owner and trainer are notified of the positive test. Some substances like anabolic steroids come with longer suspensions, because the substances continue to have an effect on the horse for a longer period and may cause an unlevel playing field for competing horses and trainers.

During their suspension, horses can still jog, gallop and exercise at a covered racetrack. They are only prevented from racing or completing timed workouts. With regard to concerns of environmental contamination, racetracks are responsible for providing clean bedding in their stalls as are trainers at their barns.

HISA’s ADMC rules were developed by the HISA ADMC committee through extensive consultation of multiple established sources, including the Food and Drug Administration, world anti-doping code and international racing authorities such as the British Horseracing Authority and Racing Victoria in Australia. The ADMC committee also directly consulted board-certified veterinary specialists, including surgeons, internists, and ophthalmologists, as well as racetrack veterinarians. Further, there were multiple public comment periods, and HISA received significant feedback from horsemen’s groups and other industry organizations.

The implementation of the first-ever nationwide, uniform, anti-doping program has been a monumental effort and a game-changing moment in the history of U.S. Thoroughbred racing. This has been an industry-wide effort with buy-in and cooperation from countless racing participants and veterinary and scientific experts. HISA and HIWU are grateful for the widespread compliance we have seen across the board and for the constructive feedback we continue to receive from horsemen about concerns they have and how we can potentially adjust our rules and processes to ensure our regulations are both feasible and equitable.

While we are regulators, we are passionate about racing and seek to work in partnership with the industry to advance the vitally important goal of strengthening equine health and safety, which is essential to the future prosperity of the sport. We encourage all who share in this goal to work with us moving forward.