By T. D. Thornton
Philip Serpe, a licensed trainer since 1984 who has maintained a nearly violation-free record while campaigning graded stakes winners up and down the East Coast, is fighting “banned substance” sanctions involving the alleged detection of clenbuterol in an Aug. 10 Saratoga Race Course winner he trained by suing the Horseracing Integrity and Safety Authority and the Federal Trade Commission (FTC) in federal court.
Serpe's Oct. 17 lawsuit in United States District Court (Southern District of Florida) cites the purported unconstitutionality of the Horseracing Integrity and Safety Act (HISA), “because, first, HISA's delegation of federal regulatory power to the Authority violates the private nondelegation doctrine, and, second, HISA and the HISA Rules violate the Seventh Amendment's right to a jury trial.”
Those allegations of unconstitutionality share common legal underpinnings with no fewer than eight other lawsuits in the federal court system in which HISA is under attack.
Three of those cases have already been decided at the federal appeals court level (two in favor of HISA's constitutionality and one against). And in each of those three lawsuits, the losing party at the appeals court level has recently initiated legal action in the U.S. Supreme Court that could lead to the nation's highest court deciding once and for all whether the 2020 law that governs the sport in America is constitutional or not.
Serpe's lawsuit stated that the 65-year-old trainer “challenges the Authority's enforcement and seeks to dissolve and vacate the provisional suspension imposed against him, which is causing Serpe to suffer irreparable injury.”
Serpe's complaint is asking the court to “declare HISA and the HISA Rules to be unconstitutional, preliminarily and permanently enjoin Defendants from enforcing HISA and the HISA Rules against Serpe, and dissolve and vacate the Authority's provisional suspension against Serpe.”
Beyond the provisional suspension, Serpe is facing a two-year period of ineligibility and a monetary fine up to $25,000 if HISA's clenbuterol allegations go against him.
The lawsuit continued: “In addition to lost once-in-a-lifetime racing opportunities, training income, and racing winnings, Serpe has lost customers, goodwill, and business. Further, the provisional suspension is causing Serpe reputational harm…
“Over his more-than-40-year career, with more than 8,000 starts, none of Serpe's trained horses have tested positive for a prohibited medication,” the lawsuit stated.
That claim is backed up by Serpe's rulings history posted online by the Association of Racing Commissioners International (ARCI).
That portal, which lists most (but not all) actions reported by state racing commissions, shows only two entries for Serpe: One was a 2013 Class 4 (lowest level) phenylbutazone overage detected at Gulfstream Park, to which Serpe agreed and consented to a $250 fine. The other was a 2018 workout violation at Saratoga related to breezing a horse too soon after it had received shock or pulse wave therapy, an infraction to which Serpe waived his right to appeal and had $500 stayed from a $1,000 fine.
The HISA Authority's director of communications, Mandy Minger, told TDN via email on Friday that the Authority did not wish to comment on Serpe's lawsuit.
The HISA Authority's web portal currently lists Serpe as being “suspended.” His case status is listed as “pending.”
Clenbuterol is listed as a “banned” substance under HISA rules. It is a drug that over the past 30 years in racing has evolved from being an unregulated bronchodilator used to treat equine airway disease to a sometimes-abused, performance-enhancing substance that eventually became heavily sanctioned in North America because it was known to mimic the muscle-building properties of anabolic steroids.
Serpe's lawsuit outlined the timeline of what happened over the past two months, starting when Fast Kimmie (Oscar Performance) won a four-horse, off-the-turf $30,000 claimer at the Spa for owner WellSpring Stables.
“As a result of winning the race, A Samples and B Samples of Fast Kimmie's blood and urine were collected,” the lawsuit stated. “Testing and analysis of the A Samples of blood and urine was performed by the Kenneth L. Maddy Equine Analytical Chemistry Laboratory at the University of California, Davis.
“The Authority began flexing its enforcement muscle against Serpe on Sept. 4, when the Horseracing Integrity and Welfare Unit (HIWU) notified Serpe that Fast Kimmie's A Sample of urine had resulted in an adverse analytical finding for the detection of Clenbuterol.
“This was the first time that Serpe learned of his alleged violation of the Anti-Doping and Medication Control (ADMC) program, even though the subject race occurred nearly a month earlier. By written response to HIWU, Serpe denied he administered, or caused the administration of, Clenbuterol to Fast Kimmie.
“Adamant in his innocence, Serpe requested that B Sample testing and analysis be performed, exercising his right under HISA Rule 3246.
“Serpe also requested that HIWU conduct blood and hair testing, together with DNA analysis, which would identify and confirm whether the A Sample tested by UC Davis was actually collected from Fast Kimmie.
“HIWU responded that Clenbuterol was not detected in Fast Kimmie's A Sample of blood and denied Serpe's request for hair testing and DNA analysis. Hair testing and DNA analysis are critical to Serpe's defense against the alleged ADMC Program violation.
“B Sample testing and analysis was performed by the Ohio Department of Agriculture Analytical Toxicology Laboratory. On Oct. 10, HIWU issued Serpe a charge letter stating that testing and analysis of the B Sample of urine confirmed the detection of Clenbuterol.
“The charge letter further stated, '[A]s required by ADMC Program Rule 3247(a)(1) of the Protocol, HIWU has imposed a Provisional Suspension on you as the Responsible Person effective as of today's date.'
“The charge letter advised Serpe that he had one week–until Oct. 17–to (1) admit the ADMC Program violation and accept, dispute, or seek to mitigate HIWU's proposed consequences or (2) deny the ADMC Program violation and dispute HIWU's proposed consequences” at a hearing, the lawsuit stated.
The lawsuit explained that Serpe's interpretation of the HIWU charge letter was that if he declined to proceed with the arbitration, then he would be “deemed to have waived [his] right to a hearing, admitted the Anti-Doping Rule Violation(s) charged, and accepted the Consequences specified by HIWU.'”
Instead, according to the lawsuit, on Oct. 14, Serpe responded to HIWU's charge letter by demanding, in writing, that HIWU rescind the provisional suspension and advise whether it will bring its enforcement action in federal district court.”
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