HISA Chairman Uses Derby Case to Outline Differences

On the same day that a split sample test confirmed an initial failed post-race drug test for a Kentucky Derby Presented by Woodford Reserve (G1) winner, the new chairman of the Horseracing Integrity and Safety Authority used aspects of the case to outline improvements he envisions.

Charles Scheeler, who served as lead counsel in former U.S. Sen. George Mitchell's independent investigation into performance-enhancing substance use in Major League Baseball (the Mitchell Report, released in 2007), met June 2 with the media for the first time since being elected in May by the newly formed HISA board to serve as its chairman.

The press conference had been scheduled before the arrival of Wednesday's news that a split sample test confirmed the initial post-race test that Medina Spirit  had failed a post-race test after reaching the wire first in this year's Kentucky Derby. He tested positive for betamethasone.

That split sample confirmation of the initial test puts his Derby win in jeopardy as Kentucky rules do not allow for any level of the corticosteroid in a horse's system on race day. 

The timing of Wednesday's press conference was not lost on Scheeler, a retired partner at DLA Piper. Moments after the press conference concluded, Churchill Downs Inc. announced it would ban Medina Spirit's trainer Bob Baffert from its properties for two years—which would keep the Hall of Famer out of the Derby until 2024. Baffert has won a record seven editions of the race, six if Medina Spirit is disqualified, which would place him back in a tie for most with Hall of Fame trainer "Plain Ben" Jones. 

Scheeler said the sport has been negatively impacted by state-to-state regulation of its drug testing and medication rules because of the variation of those rules and enforcement. The Horseracing Integrity and Safety Authority is scheduled to regulate the sport in these areas beginning in July 2022. 

"I think that these events of recent weeks underscore the significance in the project that we're undertaking, because until now horse racing has been governed like the old Revolutionary era Articles of Confederation, where the states called the shots, made the rules, and you ended up with some results, like you have here, which are sometimes consistent; sometimes inconsistent," Scheeler said. "It's going to be the job of our organization to address those concerns, to implement standards, rules, and enforcement mechanisms across the entire country; apply them uniformly and try to make a sport which is safer, which is clean, and which is fair—both to those who we govern in terms of due process and also in terms of the public in terms of the information made available to them about the sport.

"So that's what we're trying to do and it's quite a steep climb. I'll be the first to admit it."

Under the oversight of the Federal Trade Commission, authority board and standing committee members are responsible for developing, implementing, and enforcing a series of uniform anti-doping, medication control, racetrack safety, and operational rules to enhance equine safety and protect the sport's integrity.

Scheeler said aspects of the Medina Spirit case point to weaknesses in the current state-to-state model. Horses trained by Baffert failed five post-race drug tests from May 2, 2020-May 1, 2021.

"One of the problems is that you have different types of penalties in different states for betamethasone and we really need to have a uniform system," Scheeler said. "I think it's very confusing to the public that certain levels of different medications are allowed in some jurisdictions and not others, particularly because in this era horses travel and they compete in any number of jurisdictions. 

"I think what we will bring to the table that I think would be very helpful in this type of situation is that the public is going to know that the rules are going to be the same for every Triple Crown race. The tolerances will be the same, the permitted substances will be the same, and we'll also be testing in the same fashion.

"I think what this particular situation really speaks to, without getting into the specifics of it, is the importance of having a uniform results management and enforcement structure."

Scheeler noted HISA's efforts also will include proper communications to the public so that people can understand what's going on and understand the rationale.

"Here (with Medina Spirit) we had the actual first announcement of the violation being issued by the person who was alleged to have violated the rules. That was Mr. Baffert," Scheeler said. "We've got to have a system where it is the enforcement agency that is describing what happened, what the nature of the violation was, what the significance is, and what the penalties will be subject to, and the due process afforded the alleged violator. I think those are areas in which we can bring some improvements to the table for both the persons involved as well as the fandom and the betting public."