Letter to the Editor: Actions Detrimental

by Brent J. Malmstrom

I am the owner of a small stable with 35 horses in training split between multiple states. I wanted to share my first-hand experience on what happens when your trainer has been provisionally suspended, as well as my own thoughts on what is happening within our beloved industry.

HISA/HIWU testing and enforcement went live roughly 60 days ago. Every week, there is news in the trade publications of trainers who have been provisionally suspended or have had an unfavorable test result. The rules continue to be modified as the original implementation of those rules caused more harm than good. (Horses raced that should not have been able to, trainers were suspended, trainers were not suspended, claims were voided, reversals of claims due to failed tests weeks after the fact, just to mention a few…)

I continue to read and hear HISA representatives talk about not being in the public relations business but the enforcement business. I can't decide whether these statements are ignorant, arrogant, worse, or both. Of course you are in the public relations business and the fact that is not understood is baffling. Simply look at the injection-of-joints debacle that has unfolded over the last several weeks. The suspensions, non-suspensions, ineligibility to race, and the fact that they didn't know they had raced. What?!!

Credit to HISA/HIWU for getting the final ruling correct, but look at the unnecessary churn created and the net result: even more distrust within the industry. Worse, without clear conversations about why these animals use injections to benefit their overall health and welfare, the general public will view the industry as giving them heroin.

We hear from HISA representatives that provisionally suspending trainers is in the best interest of the industry and it's what is in the best interest of the horse. I would like to respond to these statements with, `horseshit!' There have been no medical studies to support this position. There are only anecdotal representations to other sports or jurisdictions on how they manage or operate.

Horse racing in the United States is not the Olympics, nor should we be governed by any other country. We live by the rule of law and protections where the government can't deprive any person of “life, liberty, or property without due process.” What I have experienced or seen from HIWU could only be described as a kangaroo court where there is no rule of law. Everything is guided by speculation and enforcement without representation on procedural rules.

To suspend someone before they have a hearing and before all test results are complete can only be defined as economic depravity. I think a few Constitutional scholars out there would think this would be a violation of your 14th Amendment rights. There is no consideration given if a trainer is suspended only to have it reversed or an adverse decision reversed. The irreputable harm has already occurred with no remedy.

When one of my trainers was provisionally suspended, I had to find new trainers for all 17 of my horses I had stabled with this trainer. There was zero notification from HISA/HIWU explaining what needed to be done. Every one of my horses under this trainer in the HISA database had a red shield under the horse rather than the traditional green. Listed next to each horse was a statement that none of my horses could compete or train in any timed workout.

All of my horses entered in races at the time of the notification were scratched from the races in which they were entered. Several of them had already received their race-day medications from the various state veterinarians. As the owner, I had no representation in what had occurred or what needed to occur. How anyone could articulate those horses were more at risk running in those races due to my trainer receiving a provisional suspension is not supported by any factual basis but rather a procedure rule. This rule, by the way, is in direct conflict with the Federal Trade Commission's own Federal Trade Commission Act Section A) prevent unfair methods of competition and unfair or deceptive acts or practices in or affecting commerce.

We have built a stable around the claiming game. We have been blessed to win a few listed stakes but our program sticks in our swim lane which is claiming horses between the $12,000-$50,000 level. When my horses miss works or they were scratched from the races in which we were entered, we are at the mercy of the condition book on when or if those conditions would be written back in a timely manner.

Jonathan Wong | Benoit

I am fortunate to be in a position to be able to work to move the horses to new trainers, focus on the condition book and get settled in for the summer. We sent a large contingent of horses to Del Mar for their summer meet in hopes to capitalize on the ship-and-win program.

My trainer is a young man who is early in his career. He isn't in the financial position to have his entire livelihood taken from him without due process. Within 18 hours of being notified on a holiday weekend, he was suspended and locked out of the HISA database. He is awaiting the results of his split “B” sample (it's been 19 days, by the way.) He hasn't been charged or convicted of doing anything other than having a blood sample come back with an 'Altered Chemical Identification of Unknown Origin'.

We have heard HISA representatives continue to make representations regarding the testing environment and how the people performing the tests have been certified and the labs for the first time are accredited and testing for the same levels.

What isn't said: are the labs able to differentiate between a contaminated sample vs. an administered sample?

What's worse, in my trainer's case, the people performing the test were not wearing gloves and were not wearing sterile gowns, nor are the receiving barns/test barns cleaned and thoroughly sterilized before and after every animal is processed.  The people performing the tests are not drug tested, nor is my trainer allowed to ask anyone if they take the medication in question as it would violate those individuals' rights under HIPPA laws. Remember, people have a right to privacy and have their own medical records be held private.

As the trainer, the HIWU rules are stacked against you. As the trainer, the burden is on you to show how the horse came into contact with the medication. In this case, the results of the “A” sample showed a level of 1/150 of the required level to have any pharmacological effect. HIWU doesn't seem to care about the facts; they are only concerned about the fact the animal had this medication in its system and this medication is considered to be a banned substance. Everyone should know this medication is allowed under ARCI, WADA, and USADA guidelines. Also for reference, the last trainer to receive a positive for this medication received no days and no fine as it was determined the medication doesn't have any performance-enhancing qualities. (This was prior to HISA/HIWU taking effect in May.)

My trainer will submit a signed declaration under penalty of perjury that he did not provide this medicine to the animal, nor has he ever provided this medication to any animal under his care. Furthermore, at my request, he took a polygraph test to confirm the same information.

A horse who has a chemical-altered identification could be out of competition for up to 14 months. Think about that: if you spent $1 million on a yearling or 2-year-old, your asset could be stranded and impaired for over a year. You have no rights and no opportunity to remedy or challenge the finding. We hear it's for the greater good of the sport but there is no science or fact to support this position–only talking points. Sales companies and stallion farms should be deeply troubled, and owners will need to rethink a capital investment. Good luck trying to explain during an audit why their asset has become stranded or impaired with no ability to remedy.

HISA representatives continue to make representations about transparency and ethical conduct. I am struggling with this, given they make little to no disclosures around their overall operations. They are operating with an unchallenged budget with no certifications or disclosures. The industry should demand a basic set of disclosures. If they want to establish trust within the industry, they must comply.

• Publish meeting minutes and attendees.
• Publish all officer and director salaries.
• Publish all contracts and financial commitments over $250,000. Certify those contracts fulfil government accounting and procurement standards and no material conflicts of interest exist between related parties.
• Publish any charitable or political donations by all officers for over $250.
• Certify the HISA Database meets all federal requirements for security and compliance standards with how every registered individual's Personal Indefinable Information (PII) is maintained.
• Certify all officers and directors have taken appropriate Government Mandated Code of Conduct training. Certify there are not any conflicts of interest between anyone in an oversight capacity and those they are regulating.

I support what this legislation was originally intended to accomplish. If I go back and read articles from 2017 about what the legislation was intended to do versus where we are today, I am troubled. The industry needed a common set of rules applied against each jurisdiction to ensure a common playing field. Those who are materially trying to influence the outcome of racing and placing the animal's well-being behind personal interest should be dealt with accordingly.

We seem to have lost a sensible, reasonable approach within an industry that can't afford any additional burdens. The game will not survive unless there can be balanced enforcement that affords equal protections to all parties including the animal. If it is determined the actions taken are detrimental to the industry the pervasive attitude must change or this industry will collapse faster than what anyone is prepared for. All you need to know is one fact: there are fewer horses born this year than there was last year.

Brent J. Malmstrom is the CFO and COO of a technology solutions firm in Washington. One of his trainers is Jonathan Wong, who was provisionally suspended by the Horseracing Integrity and Welfare Unit on July 2 after a positive test for metformin, a diabetes drug, in of his horses.