Alan Foreman Q and A Part 2: Legal Representation “A Very Heavy Lift for Most Horsemen”

Though officials within the Horseracing Integrity and Safety Act (HISA) Authority have already made huge strides forward in terms of across-the-board equine safety standards, one ongoing concern among stakeholders is that when it comes to the enforcement arm of the national program, an inflexibility in the way some cases are handled and sanctions meted out means the penalties don't always fit the crime.

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.

In Part One of this Q&A, Foreman discussed advocating for HISA to take a “fresh look” at the banned substances list to re-categorize them “based on the severity or potential to affect the horse,” and to adjust the penalties accordingly “depending upon the category.”

Foreman also called for the industry as a whole to “step forward” and advocate for a fairer system of enforcement where it sees problems in the current approach. “If it feels that these cases are not being handled fairly,” he added, “they need to step to the plate and say so.”

The following is the second part of a long, discursive conversation. It has been edited for clarity and brevity.

TDN: Let's talk about some of the other aspects of the adjudication system. The burden now is essentially on the trainer to prove the source of a positive finding where questions have been raised, whereas before, state commissions were more involved in this process.

Just this past week in the TDN, Bill Mott's attorney raised concerns about just this.

Do you also believe this a part of the adjudication process that needs correction?

AF: The burden of proof prior to HISA was absolute. Horsemen were held strictly liable for the violation, to explain the circumstances. The appropriate penalty was then issued. The standard under HISA is essentially identical. Strict liability. Now under HISA, it's to establish how the drug got into the horse. And then the standard is: Can you establish no fault, no significant fault or negligence?

Prior to HISA, an investigation would ensue. The commissions would cooperate in an investigation. The trainer would investigate. Ultimately, based on the facts and circumstances of that investigation, a final action would be taken, a penalty, or whatever.

The same thing happens with HISA or HIWU, except that HIWU is the enforcement agency. They're separate. In part, they're independent. They're not a racing commission. They are the independent third-party arm that is responsible for enforcement.

And so, my understanding is they conduct a complete investigation. They ask the trainer to investigate and provide whatever information is possible. A determination is made whether to prosecute the case or not. Not every case is prosecuted. There are cases that are thrown out that you don't read about.

Putting that aside, if you're dealing with controlled substances, it's a very quick process and a relatively easy and smooth process. In the banned substance area, it is very tough, partly because with respect to banned substances, you have to establish to the best of your ability how the drug that was reported got into the horse's system.

How did it get there? And then, based upon how it got there, are you at fault? Are you not at fault? Were you negligent? That's the standard that arbitrators and HIWU lawyers will look at in determining whether to prosecute a case and its outcome.

But the burden that has always been on the trainer, and it's always been a tall burden in horse racing.

TDN: Just look, however, at the sheer costs involved with defending yourself. They're enough…

AF: …That's a separate issue. First, let's separate out the controlled substances from the banned substances. If somebody wants to hire an attorney and go through the process [for controlled substance violations], they can do so. It's an inexpensive and relatively quick process.

With respect to banned substances, it's a totally different ballgame. And I think we all acknowledge that it is a very expensive process. It's an onerous process that quite frankly is a very heavy lift for most horsemen. And that's always been of great concern.

HISA instituted the pro bono program, which has helped a number of trainers. But a lot of trainers don't qualify. And therefore, they don't get the benefit of free legal counsel and that part of the system.

TDN: As you point out, it appears rare that a trainer would intentionally administer a banned substance. The penalties are large and potentially career-ending. It's extremely expensive to defend yourself. And yet the fact remains, the onus is on the trainer to prove that they're not responsible for a banned substance positive. And that's a big burden to prove.

And so again, my question is this: Should the system be modified so that HISA or HIWU or some kind of regulatory body is more involved, more cooperative in the investigation to determine the source of a banned substance positive finding?

AF: Well look, let me say that I totally agree with your premise. Totally, okay? And I believe that it's incumbent on the industry working with HISA to take a fresh look at the banned substance rules and penalties.

I don't think anybody would quarrel that provisional suspensions, significant penalties, are appropriate for the use or administration of substances that could affect the integrity of the sport or the safety, health and welfare of the horse. Bu there are substances getting into horses that would not be carried by a veterinarian, or prescribed in very unusual situations, for which trainers have had their careers upended.

Prior to HISA, a 60-day suspension was a significant suspension to a trainer. A 30-day suspension was a significant penalty. We're dealing with far more significant penalties now that not only have the potential to affect a trainer's livelihood, but they anger owners. And are they truly a deterrent? I mean, isn't there a better way to do it?

When HISA was created, the concern in the industry was the lack of uniformity, the lack of speed in many jurisdictions over adjudicating cases, and the overall fairness of the system. That's what HISA was created to address.

I think that many people feel that there has been overreach with respect to the penalties as they relate to many of the substances on the banned substances list and the ability of trainers to defend themselves.

TDN: I've heard from individuals involved that some case arbitrators appear to have little practical knowledge of the specifics of horseracing, and have shown significant deference to the prosecution as a result. Is this something you've seen? If so, is this an issue that needs addressing?

AF: In the controlled substances cases, you don't have an arbitrator. The so-called arbitrator is in the banned substances cases-they all are required to go to arbitration. And the arbitration system is the system that is used in international equine sport. It's used in Olympic sport. It's used in those bodies that abide by the world anti-doping agency code.

JAMS is the entity that is the judicial arbitration and mediation service. They specialize in arbitrations. The arbitrators who hear the HISA/HIWU cases are familiar with HISA rules because they're the same rules that apply across sports.

They may not be familiar with the nuances of horse racing, but the analysis is the same, whether it's horse racing or horse showing, or Olympic swimmers. And that is: How did the drug get into the horse? What is the drug? What effect can the drug have on the horse? And is there a fault? Is there no fault? Or is there limited fault or is there negligence?

The standard is the same. And it's incumbent upon both the prosecution and defense counsel, to the extent that there are nuances in horse racing, to establish and lay out those nuances.

TDN: But there are important differences between horse racing and some of these other equine sports, right?

AF: In some states pre-HISA, you had hearing officers who worked for the state. You had racing commissioners who may not have been familiar with horse racing but who were adjudicating cases. So, this is the system that was set up. These are the rules. And if they wanted to include those who are familiar with horse racing, they certainly could have put that in the rules. But that's not the way the rules were established.

TDN: If you had established the rules, would you have somebody else arbitrating these cases?

AF: I personally would prefer to have arbitrators who are familiar with our sport. But that's not the way the system is set up. And I think you needed to have a system that was totally unbiased.

TDN: What do you think of the HBPA's efforts to impose no-effect thresholds?

AF: The issue of no-effect thresholds is not new. It's been looked at by the industry and by the RMTC for over 20 years.

I mean, we went from a point of what people thought was zero tolerance to a system where, with respect to 30 controlled therapeutics, we established threshold levels. And those threshold levels for those particular drugs were well studied. They informed the RMTC and ARCI of where it could comfortably set a threshold for substances that are routinely used in the treatment of the health and welfare of the horse, and not compromise either pain management or the integrity of the race.

But there are thousands of drugs and those drugs have not been studied. And to make a determination of each individual case, whether or not the concentration that was reported could have affected or did not affect the performance of a horse is relatively impossible. And so, it's very difficult to establish no-effect thresholds.

You don't know dose of administration. You don't know route of administration. You don't know time of administration. How do you measure the effect of a particular substance on the horse? We'd all like to see it. Who wouldn't want to see it? But I think it's a really, really difficult task to require.

TDN: Difficult. But as you say, the RMTC had been doing that for years.

AF: There are drugs that have been used for years, well studied in horses. There is scientific literature in support of it. You can't do that for every drug. And that's why the standard in horse racing pre-HISA has always been: Is this a drug that does or could have the potential to either affect the performance of a horse or affect the body systems of the horse? The standard has never been based on the concentration of the drug in the system.

Look, this is all about contamination at the end of the day. It's all about contamination. And contamination is a confounding and perplexing problem for the industry. And it's one of the reasons why we have and have had the absolute insurer rule, because it's just so difficult to referee cases to determine the severity of what's happened or to put blame on someone else.

TDN: Finally, I have heard dozens of times over the past year or so from stakeholders that HISA could have avoided these teething problems by using the ARCI's model rules and building off of that. From where we are right now, do you think that that should have been done?

AF: Well, I'm going to make this point that may make me somewhat unpopular. As I look at the statistics over the past year regarding fatalities and breakdowns it makes a case, and that is: Backing off the administration of medications under the new system together with the heightened safety program, I believe, has contributed towards the substantial reduction of fatalities.

Anyone who doesn't think we were facing an existential threat because of those fatalities has their head in the sand.

The controlled substances adjudications have been very similar to pre-HISA. The difference is the system is transparent and horsemen are seeing the actual violations. They really didn't know what was happening in the industry pre-HISA. And I would argue that it's very similar.

More to your point, yes, I would've preferred to see the ARCI rules. The problem with the ARCI rules was that not every jurisdiction adopted them. They were not being uniformly applied. Look, the ARCI adopted the Mid-Atlantic safety program together with the NTRA safety program. The work that was being done in California and Kentucky-that is the HISA program. So, to me, those of us who were using this Mid-Atlantic system, there wasn't a big adjustment with HISA.

We're playing between the bookends right now in trying to resolve the best way to address and adjudicate banned substances. And I know that's been the focus of this interview. But I would tell you the safety program has been a home run. It's been good for the industry. It's something that was desperately needed. And by applying safety standards uniformly across the board, we've put the industry in a far better place than it was two years ago.