By Dan Ross
Trainer Jonathan Wong's legal team has filed an application with the Federal Trade Commission (FTC) for the agency to review an April decision by an FTC chief administrative law judge affirming an earlier Horseracing Integrity and Safety Authority (HISA) arbitration panel ruling which suspended Wong for two years and fined him $25,000 for a 2023 post-race metformin positive.
Metformin is a type 2 diabetes drug that HISA has classified as a banned substance.
The application for review asks the FTC to conduct a de novo review of chief administrative law judge D. Michael Chappell's decision, claiming that the judge had “misapplied the HISA rules approved by the Commission” and had “incorrectly decided issues of law and policy.”
According to Wong's long-time owner, Brent Malmstrom, the application for review is a procedural requirement if Wong is to take the case to federal court, as he had previously indicated. Malmstrom added that the FTC has the choice of accepting or declining the application for review.
Wong's is the first HISA-related medication violation case to have made it as far in the appeal process.
Though banned from operating in jurisdictions that fall under HISA's authority, Wong operates a stable out of Louisiana Downs, in a state that currently falls outside of HISA legal purview.
The Wong-trainee Heaven and Earth (Gormley) broke her maiden at Indiana Grand on June 1 but subsequently tested positive for metformin.
As a matter of protocol at that time, HIWU initially provisionally suspended Wong at the beginning of June when the A sample returned a positive finding for Metformin.
The HISA Authority subsequently announced that it had modified the rules surrounding provisional suspensions. Under the revised provisions, responsible parties who request B Sample confirmation following a positive test for a banned substance would no longer face a provisional suspension until the B sample findings are returned.
In Wong's case, he was notified on Aug. 9 that the B Sample confirmed the Metformin positive.
Though Wong was technically permitted to return to training for a brief period while the B sample was being processed, he explained at the time that his owners did not wish to transfer the horses back with the B Sample results expected imminently, and effectively has not trained since July 2.
Earlier this year, a HISA arbitration panel imposed on Wong the maximum possible sentence for such a violation. The two-year period of ineligibility retroactively started July 1, 2023, when Wong's initial provisional suspension was first imposed. The panel's ruling set the case up for review anew before the FTC.
In his written ruling dated April 22, Chappell agreed with the plaintiffs that HISA had departed from the anti-doping medication control (ADMC) program's standards or protocol in key instances.
Nevertheless, Chappell determined that “there is no basis presented by Appellant to support a conclusion that the resulting sanctions were 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
Chappell concluded that Wong “has failed to meet his burden of establishing that the demonstrated departures from applicable testing standards or protocols could reasonably have caused the AAF [adverse analytical finding]. Therefore, pursuant to ADMC Rule 3122(c)-(d), the test results are presumed valid and the departures are not a defense to the possession violation.”
The application for review identifies four “errors” in the decision that warrant review. Among them is Chappell's finding that the test results from the various sample analyses conducted “are presumed valid and the departures [from HISA rules] are not a defense.”
Wong's legal team argues that Chappell failed to determine the “admissibility, relevance, and materiality of the test results, nor did he discuss the impact that HISA rule violations had on the evidentiary admissibility or weight of the test results.”
Furthermore, Wong's team argues that Chappell had failed to follow federal “rule of evidence” requirements pertaining to questions raised over chain of custody handling of the samples.
Wong's legal team also takes issue with Chappell's finding that Wong had failed to meet burden of proof requirements establishing that the “demonstrated departures from applicable testing standards or protocols could reasonably have caused” the positive findings.
Chappell “did not address Appellant's extensive briefing on due process requirements that 'agencies [strictly] adhere to their own rules' and 'not violate their own rules,'” the application for review states. “The ALJ's failure to consider whether admitting the test results as evidence comported with due process law warrants review.”
In an unusual turn of events in the case, the Kenneth L. Maddy Equine Analytical Chemistry Laboratory at the University of California, Davis, conducted “Further Analysis” on the A blood sample originally sent to Industrial Laboratories, and intended to analyse what should have remained of the B urine sample processed at the University of Illinois Chicago laboratory.
The application for review argues that Chappell had failed to address the “merits” of Wong's argument that this development violated HISA's own rules.
According to the filing, if the FTC grants the application for review, Wong will seek a stay of the judge's decision.
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