Alan Foreman Q And A Part 1: “I Share Concerns About Penalties Fitting The Crime”

Just last week, the Horseracing Integrity and Safety Act (HISA) Authority released its latest safety figures, showing a four-quarter consecutive decline in equine fatalities. Indeed, in the second quarter of this year, tracks operating under HISA reported 0.76 racing-related equine fatalities per 1,000 starts–significantly lower than the perennial national average.

But on the flip side of these statistics is an ongoing concern among stakeholders that the enforcement arm of the national program is in certain areas proving too onerous, and that the penalties aren't always an appropriate response to the violation.

To discuss these concerns, the TDN recently spoke with Alan Foreman, chief executive officer of the Thoroughbred Horsemen's Association and national ombudsman on behalf of HISA and the Horseracing Integrity and Welfare Unit (HIWU). In this role, Foreman serves as an impartial resource and advocate for the nation's horsemen and women.

The following is the first part of a long, discursive conversation. It has been edited for clarity and brevity. Part two will be published tomorrow.

TDN: The Mike Puype case has caused a lot of consternation in California. On the-one hand, the rules are the rules, and HISA officials have made clear that stakeholders shouldn't be in possession of a whole list of items and medications.

But on the other hand, here you have a trainer with a pretty spotless track record–just two minor medication positives over the last 18 years according to thoroughbredrulings.com–and he's facing a potentially significant ban not for administration but for the possession of banned substances, Levothyroxine and Isoxsuprine. This has the potential to effectively end his career.

(Note: Levothyroxine was permitted in California pre-HISA, but isoxsuprine lost FDA approval in 2020, making it prohibited under CHRB regulations)

Though the case is still being adjudicated, what it points to more broadly are misgivings among stakeholders that sometimes, the punishments being meted out just don't fit the crime. Do you share these concerns?

AF: I do share the concerns about the issue of penalties fitting the crime. But you have to separate out the controlled therapeutic substances from the banned substances because they're treated differently.

I'm not involved in the Puype case, so I want to be careful in my response. But there have been previous cases since the new rules went into effect a year ago involving trainers who had in their possession a banned substance. And there has been an extensive educational process to warn trainers to go through their barns to ensure that they are not in possession of–or have in their tack rooms or in their personal belongings–banned substances. These previous cases have also involved trainers with spotless records.

The penalties, however, are mandated by the rules and are difficult to mitigate. But not impossible. There will be an extensive investigation in this case. There will be a determination made as to why the trainer was in possession of those substances. Possession cases are treated the same as if the drug was in the horse under the rules. He will have an opportunity to explain why he's in possession of those substances, and there will be an opportunity through the process to mitigate the violation if in fact it is determined that there is a violation.

My concern is that, to the extent that we have commented upon or expressed concerns about the application of these rules in these instances, there doesn't seem to have been an outcry from the industry about trying to fix the problem until now–certainly with the California interests, who feel that this may be unfair.

TDN: As you point out, there is the opportunity for these penalties to be mitigated. Should HISA/HIWU deploy this approach more extensively than they have so far?

AF: They have the opportunity to do so, but it's limited.

Since we're not dealing with a drug that's in the horse, we're dealing with possession. Why is the trainer in possession of these substances? What is the explanation? And once that explanation is made, is there an analysis of no significant fault or negligence?

If there is a finding of no fault, then the penalty is completely mitigated. If there is no significant fault, there is the ability to mitigate as with negligence.

But under the rules, the reduction in a penalty for a violation is very limited. Instead of a two-year suspension, it is an 18-month suspension. And either way you look at it, it's potentially career ending. Which begs the question: Is this an appropriate penalty for the violation?

It's very fact specific. If you're in possession of a gene and a blood doping agent then yes, probably the mandatory penalty applies. But if you're in possession of other substances for which there is an explanation, or they don't go to the integrity or safety and welfare of the horse, then they should be viewed differently.

I think what the industry is wrestling with now is what is an appropriate penalty for certain violations.

To the extent that the rules do not permit discretion, or HIWU feels it does not have discretion under the rules, that should be changed. There should always be room for discretion and the exercise of common sense.

TDN: Just to be clear, what you're saying is that these penalties aren't always appropriate, especially when it comes to certain substances currently banned under HISA, correct?

AF: Pre-HISA, the industry's principal concern with banned substances was gene and blood doping agents, snake venom, along with the kinds of substances that are difficult to detect–the EPOs, for example–that go to the heart of the integrity of the sport and the safety and welfare of the horse.

You don't see those cases very often. And in those situations, there should be summary suspensions and there should be a very aggressive prosecution and a very aggressive penalty.

But as we've seen with the banned substances over the past year, we've been dealing with substances of human abuse–your methamphetamines, which we know can be transferred from human to horse. If HISA had not been willing to make changes to those rules, you had trainers who were facing the loss of their livelihood through no fault of their own, notwithstanding whatever measures they could have taken to prevent it.

You also have other substances like metformin for example, where it's being suggested that it's showing up in horses because of contamination. And metformin isn't the only drug on the prohibited substance list for which that might happen.

Controlled medication with syringe | Sarah Andrew

We have been advocating for HISA to take a fresh look at the banned substances list and see if it isn't possible to categorize those substances similar to the way the controlled therapeutic substances have been categorized: A, B, and C, based on the severity or potential to affect the horse and adjust the penalties accordingly depending upon the category.

If it was a category “A” banned substance, there's your mandatory two years, $25,000 fine, and so on. You can see what HISA is doing now with the drugs of human substance abuse–a maximum suspension of 60 days, but which can be mitigated to zero based on the facts and circumstances and the likelihood that the drug was in the horse because of contamination as opposed to an intentional administration.

I think the [same approach with some other banned substances] would go a long way towards reducing some of the angst that pervades the backstretch.

TDN: You brought up the issue of provisional suspensions. HISA and HIWU have repeatedly argued they're necessary to maintain the integrity of the game and issued only in cases of higher import. But on the other hand, they're issued before a party has had a chance to formally argue their case. Are these provisional suspensions a fair exercise of judicial authority?

AF: The provisional suspensions come from the international rules. But I would argue that the statute that enables HISA says that with respect to enforcement, HIWU should take into consideration the unique aspects of horse racing.

As we have articulated to HISA, we believe that provisional suspensions should be limited to the most serious cases involving threats to the integrity of the sport or the health and welfare of the horse, and that provisional suspensions not be issued in cases that do not fit into that category.

We're only dealing again with banned substances here. We're not dealing with controlled therapeutic substances. But again, unless you're dealing with the most serious threats to the industry, I think that a trainer should be given the opportunity to defend himself, to have and enjoy all of the privileges of due process that is provided.

These cases are being handled relatively quickly, and in my opinion, there is no harm to the integrity of the sport or the system by letting these trainers defend themselves without putting them under provisional suspension.

TDN: When you say, 'the most serious threats to the industry,' I'm assuming you are talking about things like EPO, gene doping?

AF: Yes. Not every one of the substances that's on the banned list would fit into that category.

But I'm not a scientist, and I would hope that HISA, as it is doing right now with metformin, would take advantage of the RMTCs scientific advisory committee–which is an independent arm of the industry and comprised of the industry's best scientists–to undertake a review of the banned substances list to see if it would be possible to categorize them and then adjust the penalties accordingly.

TDN: Have you seen any cases so far that have warranted a provisional suspension?

AF:  I don't want to discuss any particular cases, but I've seen instances where I feel that a provisional suspension would not have been appropriate.

For example, with respect to the drugs of human substance abuse, all the early cases resulted in provisional suspensions, and that was unfair. But in response to industry concerns and criticism, the rules have been changed. We're still waiting for the FTC to approve them, but HISA's not applying provisional suspensions in those cases.

Dirt hooves | Sarah Andrew

I think there were other cases where contamination clearly was evident, as opposed to an intentional administration, where a provisional suspension, in my opinion, was not necessary. But you have to understand also that there is a wall between HISA and HIWU.

HIWU is an independent enforcement agency whose responsibility is to enforce the rules that have been handed to them by HISA. So, when we get into situations where we find rules to be problematic, we have to advocate to HISA and to HIWU for change. And that's what we do.

TDN: The wall that exists between HISA and HIWU leads to another key concern repeatedly raised by stakeholders: The perception that certain parties charged with an offense are being treated more leniently than others by virtue of their reputation and their connections. Do you share these concerns?

AF: I have seen no evidence of that whatsoever. First of all, the system is transparent. If you peruse the rulings for controlled therapeutic substances, you'll see that they've been uniformly applied across the board. The system works very similarly to the pre-HISA enforcement mechanism.

I have not seen any examples in the controlled area of favoritism of any kind. And that's one of the things the system was set up to avoid. A trainer might get favorable treatment in one jurisdiction as opposed to a trainer in another jurisdiction. It was supposed to be uniform. And I think that if you look at the rulings, they've been uniform.

I think where that notion has arisen relates to the current review of metformin by HISA and the scientific community. But all they've done is pause enforcement of metformin cases. They've decided to take a step back and ask for a thorough scientific review. The RMTC scientific advisory committee will advise HISA of its conclusions. If the rules need to be adjusted, or that the enforcement process needs to be adjusted, it will be adjusted. But that's not an indication of favoritism.

TDN: Just to be clear, it strongly appears that it took a metformin case against a George Weaver–someone very well respected in the industry–to prompt the sort of change we've seen in the modified enforcement approach to metformin.

AF: I can't dispute that. Although my understanding is that recent scientific information was the reason why HISA determined to ask assistance from the scientific advisory committee.

I can tell you as an advocate for horsemen and as ombudsman, when we hear or we see concerns about the rules themselves, or the application of the rules, it would be helpful, rather than us being the lone advocates, to get help from other stakeholders in the industry, many of whom were responsible for the creation of HISA and these rules, because they're the ones who react.

When you have situations like the George Weaver case or the Mike Puype case in California, it's when it hits home that then they say, 'oh well, this isn't what we intended, or this isn't fair.' But where were they in these other cases for which we've been advocating, and where we've seen these concerns?

To me, the industry needs to step forward. And if it feels that these cases are not being handled fairly, they need to step to the plate and say so.