Without Prejudice – how Europe's anti-doping rules leave trainers at risk - Is the integrity of the sport protected?
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By Lissa Oliver
After a recent spate of positive samples occurring in German racehorses, where the trainers in question were exonerated fully of any duplicity, it is time to look at whether Europe’s anti-doping rules protect the integrity of the sport to the possible detriment of the professionals whose livelihood is dependent on an honest record.
‘Innocent until proven guilty’ is a maxim relied upon by the justice system worldwide, but it becomes less clear cut in the racing world. With a public image to maintain and improve and the omnipresent perceived threat of foul play from gambling opportunities, upholding the good repute of the sport is given higher priority by some of racing’s authorities than protecting the reputation of the professionals working within it.
We have only to look back to the high-profile case of former jockey Kieran Fallon, which in July 2006 saw him suspended by the BHA until an impending court case acquitted him in December 2007. What subsequently amounted to a 17-month suspension was justified by the panel of the former Horseracing Regulatory Authority because “the integrity of horseracing is impugned by such conduct. Our task is to balance the potentially conflicting interests of, on the one hand, the reputation and integrity of racing and, on the other hand, the right of the individual to pursue his chosen career.
“There is a strong likelihood that during such a period racing would be severely damaged both by the possibility of further race fixing, and the perception of such; and by the adverse reaction of many members of the racing public to the concept that a jockey charged with an offence is permitted to continue to participate.” The decision was made not to grant a licence renewal until the conclusion of the trial. Fallon said at the time, “The HRA ruled me guilty without trial by banning me from racing.”
While this is an extreme example, it stands as a stark reminder of the fragility of the licencing system in the face of integrity accusations, particularly when so many recent breaches of anti-doping rules have absolved the trainer of any responsibility. Contamination and cross-contamination cases have highlighted how difficult it can be to prevent positive samples occurring; and with only disqualification to be gained from administering performance-enhancing drugs, malicious doping becomes an even greater threat when tightened anti-doping rules put licences and careers on the line.
With this in mind, a number of updates to the British Equine Anti-Doping Rules, primarily to clarify how the Responsible Person can avoid a penalty under such circumstances, came into effect from 1 September 2020 but have been described as “a mixed bag for trainers” by National Trainers Federation (NTF) Chief Executive Rupert Arnold.
The changes by the British Horseracing Authority (BHA) came as a result of a comprehensive review of the Equine Anti-Doping Rules undertaken in 2018, following a number of Disciplinary Panel cases which called into question previous assumptions regarding the rules and how they should be applied—prompted largely by the case of malicious doping involving a filly trained by Hughie Morrison.
Morrison was charged in May 2017 with breaching the rules of racing, after the filly Our Little Sister tested positive for nandrolone following a race in January of that year in which she finished last. Facing the possibility of a ban of between one and 10 years, Morrison sought police help and offered a cash reward for any information to support his innocence.
“What on Earth could I have to gain from this?” he stated at the time. “Our Little Sister was a horse of limited ability, in a race with hardly any prize money, and there was no unusual betting on it. You're basically committing suicide by giving any horse the substance which was found in Our Little Sister. Racing is my life. My reputation is everything.”
The filly was at a racecourse with three other stable runners at the time the nandrolone was thought to have been administered and had been left unattended due to an injury to another of the runners. “As the rules stand, the onus is on me as the licence holder to establish who administered an anabolic steroid to Our Little Sister,” accepted Morrison.
The trainer escaped any ban by the BHA Disciplinary Panel in December 2017, though he was found in breach of the Rules of Racing and given a £1,000 fine. Jamie Stier, then chief regulatory officer for the BHA, explained of this conflicting decision, “The rules are clear that it is the trainer’s responsibility to prevent horses taking part in our sport with prohibited substances in their system. It is important, therefore, that the trainer in this case has accepted he was in breach of the Rules of Racing, and that the Disciplinary Panel has confirmed that as the Responsible Person, Mr Morrison is in breach of the Rules.”
The subsequent review of the Rules has led to simplifying them to understand and follow, whilst the BHA maintains they still protect those who work in, follow or bet on British racing. In conducting the review, the NTF, UK and World Anti-Doping agencies, as well as sport horse bodies such as the FEI, were consulted.
The main changes to the Rules, which were last updated in 2015 in the wake of the 2013 Mahmood Al Zarooni steroid scandal, relate to the circumstances in which the Responsible Person may be found in breach of the Rules but not be penalised when a case is heard in front of an independent Disciplinary Panel.
Cautions, rather than fines, are now available for lower level breaches, and suspended sanctions are also available for breaches. However, the Rules also demand that if a horse tests positive for a prohibited substance, in order to avoid a penalty the Responsible Person must establish the precise source of the positive finding and prove they had taken all reasonable precautions. As is clear from the Morrison case, establishing the source of a positive sample may not be possible and would certainly be an expensive and lengthy process.
Tim Naylor, director of Integrity and Regulation at the BHA, states, “We have to ensure that our Rules in relation to anti-doping are sufficiently robust, but also that as much as is possible in such a technical area everyone bound by the Rules understands what is required of them. Whilst in places the requirements upon the Responsible Person have been strengthened, there have also been changes to allow more appropriate penalties for lower- and mid-level breaches of the Rules.”
However, the NTF argues that while the BHA took on board the need to remove penalties where malicious administration could be proved, strict liability reverses the principle of innocent until proven guilty by putting the onus on the defendant to prove innocence—in this case by having to prove the precise source of the prohibited substance.
“This is notoriously difficult to do,” Rupert Arnold points out. “Even the BHA says in its note to trainers that to place the burden of establishing the source of the positive sample on the regulator ‘would make enforcing an effective anti-doping regime impossible, due to the access and resource implications.’ The regulator has comparatively greater resources than most trainers.”
The BHA and NTF have agreed on restructured penalties, including the option of cautioning a trainer instead of imposing a financial penalty for the least culpable breaches, thereby protecting a trainer where a treatment has been correctly administered on veterinary advice, all guidelines have been adhered to and the horse has still provided a positive test.
However, the minimum sanction of a suspended disqualification in addition to a financial penalty for the lowest-level breach for prohibited substances is a contentious issue. “If the Panel is satisfied, the trainer had no knowledge of the substance’s administration and had taken reasonable precautions, a suspended disqualification is an unwarranted stain on the trainer’s reputation,” Arnold insists. “We appealed to the BHA Board to allow the Panel discretion to impose a financial-only penalty in the right circumstances. It is very disappointing that they chose not to allow that discretion.”
France Galop also updated its Anti-Doping Rules as of 1 January 2020. A new procedure for storing samples for ten years has now been implemented so that samples can be checked retrospectively when new research becomes available. From January, horses under four years of age may not be treated with bisphosphonates. Additionally, prescription registers are now recognised and supervised by France Galop.
France Galop already boasts one of the largest anti-doping resources in European jurisdictions, with an annual budget of more than €10 million specifically allocated. Every one of the 7,300 races run each year in France are subject to at least one control. With 30,000 random checks, this represents 11,272 samples taken from the 77,757 runners annually. France also carries out the most unannounced checks during training—more than 900 per year.
Meanwhile, in August, after much pressure by Horse Racing Ireland (HRI), the Irish regulatory board extended its random testing to unlicensed premises. The minister at the time for the Department of Agriculture, Food and the Marine, Dara Calleary TD, welcomed the signing of a Memorandum of Understanding between the Department and the Irish Horseracing Regulatory Board (IHRB), providing IHRB officers with enhanced investigative powers with regard to the use of animal remedies.
In Germany this summer, five horses tested positive for caffeine which was traced to contaminated feed that contained apple pomace.
Calleary explained, “This Memorandum aims to advance the already collaborative working arrangements between my Department and the IHRB to improve the oversight, investigative and enforcement powers of the horseracing industry to support animal welfare and to strengthen domestic and international confidence in its brand. Whilst extending the powers of the IHRB officers, the Memorandum does not alter the criteria or sanctioning process of the IHRB. Related prosecutions will remain at the discretion of my Department.”
IHRB officers will be trained to exercise powers and functions of authorised officers, such as seizing unauthorised or prohibited animal remedies, in relation to horses, land, premises and people across the sector. This will include thoroughbred breeders, their breeding establishments, or horses from other establishments which have not yet entered training; licenced persons and horses in their possession; and any owner. “It’s one part of an overall welfare story that is going to be a strong focus for the industry. And it’s a positive focus,” HRI Chief Executive Brian Kavanagh said.
The welfare aspect of drug testing and anti-doping has always been to the fore in Germany, but positive samples made the headlines this summer when in July five horses tested positive for caffeine, including the subsequently disqualified Deutsche Derby third, Grocer Jack. …
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