Abstract
“Frog Juice”
O
In 2012, dermorphin, better known as “frog juice,” became a popular pre-race drug. This substance is found on the skin of South American frogs. 6 It has more potent numbing effects than morphine, and makes horses hyperactive. 7 Conveniently, “frog juice” was undetectable by post-race testing. 8 Trainers believed this was the miracle drug, and veterinarians were happy to distribute it for a fee. 9 It was not until a lab in Denver, Colorado modified its post-race tests that “frog juice” finally became detectable. 10 Since that time, more than 30 horses in Louisiana, Oklahoma, New Mexico, and Texas have tested positive for this illegal, performance-enhancing substance. 11 Multiple races were won under false pretenses, and thousands of bettors were defrauded.
Introduction
Horseracing is a multibillion-dollar industry that creates hundreds of thousands of jobs across the nation. 12 It not only encompasses racing, but also breeding, sales, training, gaming, veterinary medicine, and fans. In horseracing, getting to the winner's circle is everything; and many will use whatever means necessary to get there, including deceit. One of the most common tactics people use to cheat their way into the winner's circle is through the administration of drugs that are not approved by the racing commission. This can be done through performance-enhancing drugs, numbing medication, or even drugs that slow horses down. Because doping horses is so common, states have attempted to enact measures that will prevent such corrupt actions; however, despite state efforts, drug use is still very prevalent in today's horseracing industry.
Drugging a horse not only affects the trainer and owner, it affects the thousands of people who depend on the integrity of the sport when placing their bets. When a trainer, owner, jockey, veterinarian, or anyone else administers an illegal substance to a racehorse, they defraud the betting public, thus ensuring the loss of a bet to those who should be winning. If people cannot trust that horses will go into races with a clean system, they will no longer choose to gamble on horseracing, and the industry will not survive. In order to keep horseracing alive, uniform rules concerning drug use should be adopted for all states that participate in the sport.
Drugging Racehorses
Drugging racehorses can be traced back to the time of James I of England; when people used the leaves of coco plants, caffeine, and cocaine to dope horses. 13 When horseracing came to the United States, the practice of administering drugs to racehorses followed along. Before the 1930s, detecting drugs was almost impossible. At that time, heroin was the drug of choice to energize horses. 14 Since then, trainers have tried everything from cocaine, to Viagra, to cobra venom to get their horses into the winner's circle. 15 Modern-day drugging is divided into four types: drugging to win, drugging to lose, drugging for therapeutic reasons, and accidental drugging. 16
To win
There are three different classifications of drugs one can administer to a racehorse to increase the chance of winning. The most common is administering a stimulant to increase the animal's energy. These drugs increase the animal's excitation and euphoria, which stimulate them to run faster and harder. Another is administering medication in order to numb pain. If a horse is injured, he will not be able to run as fast due to discomfort; however, if he is given a drug that masks the pain, he will be able to run despite his injury. This is possibly the worst method of doping from a humanitarian standpoint, because such methods can cause even more harm to the horse and put the jockey's life in danger. Certain drugs will both energize and mask pain: “frog juice” is an example. The third form of drugging to win is through the administration of tranquillizers, or “calmers.” This may seem counterproductive, but if a horse is overexcited at the starting gate, a tranquillizer may calm him down and refocus him. 17
Drugging to increase the chances of winning requires the person administering the drug to know exactly what a particular horse needs to enhance its performance and the ideal dosage of that drug. The trainer is in the best position to know the needs of each horse and typically relies on the veterinarian to suggest a specific drug and dosage; thus doping to win in typically “considered an ‘inside job.’” 18
To lose
Doping to lose involves administering tranquillizers, depressants, or other drugs that will slow a horse down. This strategy involves drugging multiple horses, then betting on the one that has not been medicated. 19 The drugging-to-lose scheme is most often used when placing a wager on a long shot. 20 If the faster competitors are sluggish from the drugs, the non-medicated horse has a better chance of wining. 21 If the non-medicated horse has the least favorable odds, it will grant the bettor the biggest payout. 22 Drugging to lose is typically considered an “outside job.” 23
Therapy
There are two types of therapeutic drug use. The first is using a drug permitted by the racing commission in that particular jurisdiction. 24 Although administration of legal medication to comfort an ailing horse seems to be good practice, many of these medications have side effects that can improve a horse's performance. 25 Thus, trainers and/or owners claim their horse has a legitimate need for the drug, but in actuality, it may be a ploy to get these helpful side effects. 26 A common example of this is clenbuterol, a bronchodilator that is used to treat respiratory infections and inflammation, which are common for horses living in dusty barns. 27 However, clenbuterol also increases aerobic capacity and burns fat while building muscle, similar to a steroid; thus, many horses who are not suffering with respiratory ailments receive this medication anyway, in an effort to increase performance. 28
Clenbuteral has a different withdrawal period in different jurisdictions. 29 In other words, the amount of time you are allowed to administer the drug before a horse races is different in different jurisdictions. 30 Arizona, Arkansas, Texas, and Kentucky do not allow Clenbuterol to be given less than 14 days before a race, but Colorado and Oregon do not allow it to be given within 30 days of racing. 31 Each state has its own rule, but most do not allow it to be dispensed within 14 days of the race. 32
The second type of therapeutic drug use is administering drugs that have known benefits, but are outlawed in the jurisdiction in which the horse is racing. 33 For example, dermorphin can numb pain, which can help an injured horse; however, it is illegal in all of the racing jurisdictions.
Accidental doping
Accidental drugging can happen in a variety of ways. The most typical is through some sort of feed contamination. 34 In Ohio in 1989, a trainer was fined after his horse tested positive for drugs during the post-race test. 35 Upon further investigation, it was found that the feed was being contaminated by the grain elevator, causing horses to test positive for illegal drugs. 36 The fines were dropped once this was discovered. 37
Preventive Measures
Although football, baseball, and all other professional and amateur sports have a central regulating body, horseracing does not. Each of the 38 states that hold horse races determines its own rules and regulations. For this reason, the drug policy in racing varies from state to state. Each state recognizes its duty to the betting public to keep horseracing honest; however, they also realize that more trainers will want to run their horses in the more tolerant states. 38
Testing
Every state requires some form of testing to be done after a race to determine whether the winning horse was illegally medicated. Some states, such as New York, have implemented pre-race testing as well as post-race testing. 39 Post-race tests began in the early 1930s with saliva testing. 40 Although saliva testing detected all orally administered drugs, it rarely detected drugs administered intravenously; therefore, tracks began testing horses' urine. 41 Urine testing “not only detected the presence of drugs in both methods of administration, but also in cases where the dosage was as minute as one-tenth of a grain.” 42 However, a urine sample is not as easily accessed as saliva. In some cases, grooms waited over nine hours to collect a sample. 43 In 1941, impatient grooms began urinating in the sample cups themselves. 44 This led to multiple horse disqualifications and trainer suspensions because the test would pick up caffeine from coffee the grooms consumed. 45 Today, horses give both blood and urine samples for post-race testing. 46
Once samples are collected, “there are three primary types of testing … thin-layer chromatography (TLC), enzyme-linked immunoassays (ELISA kits), and liquid or gas chromatography/mass spectronomy (LCMS/GCMS).” 47 Thin-layer chromatography is the most common. 48 Each of these tests varies in cost and efficiency; because many states prioritize cost control more highly than effectiveness, they often choose the cheapest test, which saves money but fails to provide adequate detection. 49 For example, Arkansas randomly separates its samples into thirds (one third will have TLC, ELISA, or instrumentation testing; one third are tested with ELISA kits, meaning they are only tested for 15 different substances; and the last third are screened with instrumentation testing). 50 However, Louisiana's policy states “that TLC or instrumentation testing may be used for blood samples, and either ELISA or instrumentation for urine samples.” 51
Multiple states do not even delineate which drugs need to remain in the testing rotation; therefore, what the samples are tested for and how samples are tested varies so greatly from state to state that it is impossible to get consistent, accurate results. 52 This results in embarrassing situations, such as the frog juice scandal. Some substances, though illegal like dermorphin, are not included in testing; therefore, trainers are able to get away with using them. Even if they finally do begin testing for them in some states—Louisiana and Oklahoma currently test for “frog juice”—other state tests may never detect the substance, and an incalculable amount of drugged horses continue to run.
Trainer insurer's rule
Trainer insurer's rules are the regulations that hold the trainer responsible for the horse's condition; therefore, if a horse tests positive for drugs, the trainer is held accountable. 53 The primary purpose of these rules is to prevent illegal drug use. 54 Carroll v. Cal. Horse Racing Bd. is the first known case involving a drugged racehorse and the origin of the trainer insurer's rule. It states, “the trainer is responsible for the condition of a horse in his charge.” 55 Since then, the rule has become more defined. Today's racing jurisdictions use one of two trainer responsibility rules: the absolute strict liability rule or the rebuttable presumption rule. 56
Absolute strict liability
The absolute strict liability rule states that the trainer is strictly liable for the condition of the horses in his custody. 57 This is the most common model throughout the 38 racing jurisdictions. The reasoning behind such a strict rule is outlined in Fioravanti v. State Racing Com. 58 “Horse racing accompanied by gambling is particularly susceptible to fraud and corruption.” 59 The absolute insurer's rule “is designed to provide maximum protection against the illicit administration of drugs to race horses. The rule may do injustice to a trainer innocent of wrongdoing; but it serves to protect the public.” 60 For example, the New Jersey regulations state “[a] trainer shall be the absolute insurer of and is responsible for the condition of a horse within his care and custody.” 61 New Jersey, New Mexico, 62 Louisiana, 63 New York, Kentucky, Ohio, 64 Idaho, 65 Florida, 66 Washington 67 all have some form of the absolute insurer's rule.
Rebuttable presumption
The rebuttable presumption rule places the burden of proof on the trainer to verify that he or she did not give the racehorse the illegal substance. 68 For example, Colorado law states that when drugs are found in a horse's system it “create[s] a presumption that the drug was administered either by [the trainer] or with his knowledge and consent. When the presumption has arisen, it is incumbent upon plaintiff to produce evidence to rebut this presumption.” 69 Colorado, California, 70 and Oklahoma 71 follow the rebuttable presumption rule.
Criminal prosecution
Some states have authorized criminal statutes for behavior that threatens the integrity of horseracing and the pari-mutuel system. 72 If the betting public believes the races are fixed because of doping, it will lose faith in the system and revenue will drop; therefore, the state has a considerable interest in maintaining the integrity of the sport and penalties may be severe. 73 In Oklahoma, for example,
[a]ny person who violates the provisions of this section or who knowingly enters in a race a horse to which any drug or medication has been administered in violation of this section shall be guilty, upon conviction, of a felony and shall be fined not more than Ten Thousand Dollars ($10,000.00) or be imprisoned for a period of not more than ten (10) years, or by both said fine and imprisonment. The Commission shall suspend or revoke the license of any such guilty party. 74
In California, anyone who is connected with doping a racehorse “is punishable by a fine not exceeding five thousand dollars ($5,000), or by imprisonment in a county jail not exceeding one year, or by imprisonment pursuant to subdivision (h) of Section 1170, or by both that fine and imprisonment.” 75
Drugs and Gambling
Drug use in horseracing affects the outcome of the race; therefore, it is directly related to the pari-mutuel system. Horseracing is unique because it is the only form of gambling in the United States where out-of-state wagers are allowed. 76 It is also granted a special exemption from laws banning telephone and Internet wagering. 77 Each year, roughly $11 billion is wagered on horse races; of that $11 billion, 90 percent is from off-track betting. 78 In order to better regulate this type of gambling, the federal government established the Interstate Horseracing Act of 1978 (IHA). 79
Interstate Horseracing Act of 1978
The IHA acknowledges that generally, the individual states should oversee gambling within each state. 80 However, the federal government must ensure that one state does not interfere with gambling in other states, and that each state remains cooperative in accepting interstate bets. 81 The IHA establishes a responsibility for Congress to “regulate interstate commerce with respect to wagering on horseracing in order to further the horseracing and legal off-track betting industries.” 82 It also outlines who is allowed to accept interstate off-track wagers. 83 Based on the IHA, the federal government can regulate horseracing as it relates to wagering on races. 84
Racinos
A common trend in horseracing is for casinos to open at racetracks. Although this increases profit for racetracks, it increases the use of illegal drugs. 85 When casinos raise racetracks' profits, racetracks will often use revenue from slot machines to increase the purse money in races. 86 The Thoroughbred Racing Association conducted a study, which concluded that more than one-third of the purse money awarded in U.S. thoroughbred racing comes from added-gaming sources. 87 Initially it would seem like an ideal situation: “[g]ambling companies, state budgets and some horse owners have benefitted” from this system, but casino gambling is also hurting racing because higher purses bring a new desperation to win races, which leads to increased doping. 88 This is most prevalent in claiming races because it is in these races that the cheapest horses run. 89 When racetracks open a casino and purses rise above the net worth of the horses running, it creates a powerful incentive to run a horse despite his physical condition. For example, Aqueduct, in Queens, New York, opened a casino in 2011, and in 2012, 30 horses died racing there, which was a 100 percent increase from the year before. 90 In all, 19 of those 30 deaths occurred due to some sort of drug-related incident. 91 At Aqueduct, it is not uncommon for a horse worth $7,500 to run in a race with a $40,000 purse. 92 The larger purses offered for horse races at racinos lead trainers to dope horses even more frequently than ever before in order to increase the odds of victory.
Reform
Unlike other sports, horseracing lacks a centralized authority to impose and enforce uniform rules. 93 There are 38 different jurisdictions, each with its own set of rules. 94 For an industry that deals with such a tremendous amount of money ($11 billion), there is hardly any accountability. 95 Illegal drug use and cheating should not be tolerated, especially because the sport has been granted the privilege of off-track betting. 96 The vast majority of people in the horseracing industry do not want the federal government involved, and have stated that they can be their own regulating body. 97 In recent years, there have been various movements to clean up horseracing; however, the efforts are either not widely adopted or destructive.
Mid-Atlantic Uniform Medication Program
In January of 2014, New York, New Jersey, Massachusetts, Delaware, Maryland, Virginia, West Virginia, and Pennsylvania implemented the Mid-Atlantic Uniform Medication Program. 98 The program, which was spearheaded by the Thoroughbred Horsemen's Association, divides medications into two categories: therapeutic and prohibited. 99 There are 24 substances on the allowed list of drugs. 100 Anything else found in a horse's system will disqualify it from the race. 101 Lasix (furosemide) is the only drug allowed on race day; however, it must be administered uniformly and by designated persons. 102 Clenbuterol cannot be dispensed within 14 days of the race. 103 The Racing Medication and Testing Consortium (RMTC) must accredit the various states' laboratories used for testing in order to ensure uniform testing. 104 Many hope the adoption of this program shows that the horseracing industry can come together to regulate itself without the aid of the federal government; however, only eight of the 38 racing jurisdictions have put the program into effect, and no new jurisdictions have joined since the program began in 2014.
Water Hay Oats Alliance
The Water Hay Oats Alliance (WHOA) is a group of “like-minded Owners, Breeders, Trainers, Jockeys, Equine Practitioners, Industry Professionals, Handicappers and Racing Fans who stand against the permissive use of race day drugs.” 105 The goal of this movement is to have federal legislation enacted that will appoint the United States Anti-Doping Agency (USADA) to police horseracing and enforce an anti-doping program, which would ban all race day drugs regardless of their therapeutic uses. 106
Although WHOA may seem like the most obvious solution to some, it may not be the best choice. According to Dr. Heather Cutbirth, an equine veterinarian from Lafayette, Louisiana, WHOA's philosophy is unrealistic for many reasons. First and foremost, a diet of purely water, oats, and hay is not sufficient because it will not take care of an equine athlete's nutritional needs. 107 “Every professional, college, and high school athlete takes supplements, and even non-athletes take a daily vitamin.” 108 Second, doing away with all pre-race drugs is not good for the horses' health. 109 It is true that some drugs are used unnecessarily, but many have legitimate therapeutic value. 110 For example, as much as the use of Lasix is debated, it will stop a horse from experiencing respiratory bleeding due to exercise-induced pulmonary hemorrhage (EIPH), which is a very common problem in racehorses. 111 Blood in the lungs of a horse causes difficulty breathing and makes the animal extremely susceptible to bacterial infection. 112 Lasix reduces the severity of EIPH and is necessary for the health of some racehorses; however, this drug has also been known to improve performance, leading many to disapprove of the use of Lasix on race day. 113 Finally, from a purely business perspective, if all drug use is taken out of horseracing, it will severely hurt the lower echelon of horses and possibly wipe out the racing industry. 114 “There are a lot of great stakes races, but the majority of races run everyday, that keep the sport going throughout the year, are claiming races.” 115 It is the lower-level racehorses that are running in these claiming races, and the lower-level racehorses that are most in need of vitamins, supplements, and legal therapeutic drugs. Many horses running at the claiming race level will break down or be unable to keep up in racing if they are limited to water, hay, and oats. 116 Without them the sport could not exist, thus the WHOA philosophy is not a realistic direction for the sport to take.
Conclusion
It is obvious that the horseracing industry needs tighter regulation concerning the administration of medication. Currently, each state implements their own rules of drug use in horses at their racetracks; however, their policies are ineffective, and illegal doping remains a large problem in the sport. Pre-race and post-race testing varies greatly between states. Some states use more effective tests despite the added costs, but other states choose to save money. Additionally, there is no uniformity in the types of drugs the horses are tested for, or which drugs are allowed in each state; therefore, a horse on a legal, therapeutic drug may win in one state, but the same horse may be disqualified in another state with different rules. Testing, trainer insurer's rules, and even criminal prosecution do not seem to be adequate preventative measures.
Competition and greed are so great that trainers, owners, etc. are still drugging horses in order to win or lose. This desire is only heightened at racinos, which are growing in popularity, because of the more lucrative purse structure. In order to eliminate the drug culture in horseracing, Congress should create a uniform drug policy. The Interstate Horseracing Act of 1978 gives the federal government the authority to regulate horseracing as it relates to gaming. When a racehorse runs with illegal drugs in its system, the betting public is defrauded, and the outcome of the race is altered; therefore, drugging racehorses directly affects wagering. Over the past few years, there have been various movements within the racing community to try and enact reform; however, these movements are either not widely adopted or are not realistic for the industry. The federal government should step in to create and enforce uniform rules in order to ensure that the integrity of the sport remains intact.