Op/Ed: On Absolute Insurer Rule, Judge Got It Right

The absolute insurer rule was always an imperfect way to do deal with a problem where a perfect solution does not exist. It is true that it serves a need in that it does not allow trainers to mount the “I don't know” defense when it comes to drug positives. A trainer cannot drug a horse and get away with it by feigning ignorance, that he or she has no idea how the stuff got into the horse's system. Let that happen and, unless you actually see a rogue trainer or their vet personally inject a horse, you'd never again be able to hang a positive on them.

The problem with the rule is that is does not allow common sense to enter into the equation.

That would have been the case with Graham Motion had Franklin Circuit Court Judge Thomas Wingate not thrown out the suspension and fine handed to him by the Kentucky Horse Racing Commission after Kitten's Point tested positive for the medication Methocarbamol following her win the GIII Bewitch S. in 2015 at Keeneland. Wingate ruled that the absolute-insurer rule is unconstitutional (click for more).

That she had 2.9 nanograms per milliliter of the medication, over the threshold level of 1.0, means little. What does matter is what is rational, and what is not. No one in their right mind can possibly believe that Graham Motion administered that drug to the horse in an effort to cheat and improve her performance in the Bewitch. Motion has an impeccable reputation and, though not a scientist, it's hard to believe that such a tiny amount of a drug that is a muscle relaxer could have possibly moved the horse up in any way.

Then, how did it get in the horse's system? Motion says he administered the medication leading up to the race but withdrew it seven days out. The withdrawal time is two days. If he is telling the truth, he was careful, abided by the rules and yet was still penalized. Perhaps there is something strange about the makeup of that particular horse that allowed the Methocarbamol to remain in her system longer than normal, maybe the suggested withdrawal time needs to be adjusted, maybe the testing procedures are too sensitive? Then again, does it really matter? There's no chance that Motion did anything wrong, let alone willfully doped the horse, yet he was asked to pay for a crime that he did not commit. That's not right.

More and more, we are seeing cases like this, where a trainer gets a positive, gets fined and suspended and their reputations take a hit, and there's virtually no doubt that they are innocent.

Howard Taylor is a prominent owner in the Standardbred game and a lawyer who often represents horsemen charged with drug violations. He has plenty of stories.

“I understand the reasoning behind the absolute insurer rule, but it places an unreasonable burden on some people,” he said. “For instance, I am representing a guy who has a positive test in Pennsylvania and he knows exactly where it came from. His horse came up positive for a drug he never heard of. The judges even had to look up what it was. It turns out the guy paddocking for him told him it was a medication he takes every day. He was paddocking the horse that day so the trainer knows exactly where it came from, yet the racing commission has charged this guy despite this. Pennsylvania has a trainer responsibility rule chiseled in stone and so does Indiana. But they should allow for a rebuttal presumption.”

There was another story in harness racing a few years back where a horse tested positive for the drug used in Rogaine. Turns out the horse's regular driver was using the product to help regrow his hair. Still, the trainer was suspended.

Judge Wingate did not take the absolute insurer rule and blow it up. What he did was give racing commissions the opportunity to look at the facts in a case and whatever extenuating circumstances there might be and make common-sense judgments. Under the absolute insurer rule, a commission can't do that. The horse tests positive for whatever. The trainer is guilty. End of story. With ultra-sensitive testing methods and environmental contamination a very real problem, commissions have to be allowed to look under the hood.

None of which is meant to say that, thanks to Wingate, this issue has been cleared up forever and will go away. The judge did open a door that could lead almost anywhere, and some of the possibilities would not be good for the sport. What's needed now is common sense from the other side.

There are a lot of people out there in the business of defending horsemen who get drug violations and there are in fact a lot of horsemen who cheat and get caught. It is only a matter of time until an attorney challenges a drug positive, cites the Kentucky decision and uses a defense somewhere along these lines: “My client is an honorable man, but there are many people on the backstretch who do not like him because he wins so many races and has won dozens of racing by claiming horses off others and improving on them. We firmly believe that a rival trainer purposefully drugged my client's horse in the middle of the night when no one was looking in a malicious act of spite to bring this good man down. Therefore, these charges must be thrown out.”

Taylor, for one, does not think that is going to happen.

“It's not like they're going to start letting people off left and right,” he said. “It's still going to be a matter of if you can't figure out how something got into the horse's system, you will be held responsible. But if you do know what happened and can prove that something got into a horse's system and it was not intentional or a matter of negligence they should be able to let you off. I use this argument all the time: You are the insurer of last resort; you are not the absolute insurer.”

Let's hope he is right. We need racing commissions to exonerate people who obviously deserve to be let off and we need the courts to use common sense and not allow ridiculous excuses like the example given above to find the guilty not guilty. If that's the end result of the Motion decision, the sport will be better for it.