By: Edwin Beusch
Doping – the use of performance-enhancing drugs (“PEDs”) in sports – dates as far back as Ancient Greece.[i] Beginning in the 19th century, athletes used substances such as caffeine, sugar cubes, and alcohol-based cocktails “to improve strength and overcome fatigue.”[ii] It was not until the 20th century when humans began to create more sophisticated means of doping.[iii] “[S]cientists isolated, characterized, and synthesized testosterone” to gain an understanding of its effects.[iv] “[T]he first recorded case of the use of testosterone [for] improving performance” was in 1941.[v] An 18-year old horse, Holloway, was given testosterone and proceeded to win a number of races, showing trainers the “potential of testosterone and other anabolic steroids” in sports and specifically horse racing.[vi]
Testosterone became fully available in horse racing in 1947, and there was much debate over whether it should be permitted.[vii] The debate became even more prominent as time went, and as more PEDs became available.[viii] Soon, racing authorities were overwhelmed as they “couldn’t keep up with the hundreds of newly-arriving drugs for which there were no tests.”[ix] States gave trainers a good deal of discretion in using these drugs,[HT1] due to a lack information about their effects.[x] As new drugs were detected, “racing officials [decided] not to ban it, but allow it, with minor restrictions.”[xi] In addition, trainers would go beyond the racing restrictions and give horses drugs that were in clear violation of the rules, such as cocaine, methamphetamine, and fentanyl.[xii] Over the decades, “drugs became so intertwined with horseracing” it seemed impossible that any meaningful change would ever come.[xiii]
The lack of punishment for rule violators further exacerbated the doping problem.[xiv] It was well known that many violators, mostly trainers, would receive only a “slap on the wrist,” consisting of a small fine or short suspension.[xv] Records show that “states fined violators an average of $1,700 and/or suspended them for an average of 64 days.”[xvi] Fines ranged from $250 in Ohio to $15,000 in California.[xvii] To compete and win at a high level, trainers knew that they would need to give their horses PEDs, and a small fine or short suspension was not a deterring factor.[xviii]
The rampant usage of PEDs has led to some severe consequences for horses. First, there was a significant number of horse injuries and fatalities linked to PEDs.[xix] This is largely because trainers will give horses drugs that “mask their injuries or illnesses, allowing them to run when they should be resting.”[xx] While there is currently no official number of horse fatalities from overusing PEDs, there are some estimates that hundreds, if not thousands, of horse fatalities in recent years are due to PEDs and poor facility conditions.[xxi]
This leads to the second consequence the horse racing community faces from PEDs: scandal.[xxii] Tragic stories, such as the death of nineteen horses under the care of infamous trainer, Jorge Navarro, consume the sport.[xxiii] More recently, 2021 Kentucky Derby winner, Medina Spirit, was stripped of his victory for testing positive for steroids.[xxiv] Medina Spirit has since passed away.[xxv] These types of scandals destroy the integrity and credibility of the sport.[xxvi]
So, is this horse racing’s fate? A sport with top athletes being overworked and injected with PEDs, often leading to injury or death, while those responsible face little to no penalty? Thankfully, recent news may indicate otherwise. On July 1, 2022, the Horseracing Integrity and Safety Act (HISA) went into effect.[xxvii] HISA implements an “anti-doping and medication control program,” as well as a “racetrack safety program.”[xxviii] The bill aims to regulate the treatment of horses, injury and fatality analysis, track surface quality, and more.[xxix] HISA is a major step in the right direction; however, it is not all the government can do to deter would-be rule violators.
As previously mentioned, rule violators have rarely faced any serious penalties for their infractions, so simply creating more regulations without harsher penalties will have little impact.[xxx] In order for trainers to truly be deterred from engaging in these illegal and dangerous activities, the government must prosecute violators to the fullest extent of the law. Fortunately, the government finally seems to understand this.[xxxi] In 2020, the Manhattan U.S. Attorney’s Office "broke up a doping ring that involved racehorses at all levels of professional competition.”[xxxii] Over thirty people were charged in four separate cases, and the penalties imposed by the New York federal judge were harsh.[xxxiii] A racetrack worker was “sentenced to three and a half years in prison,” ordered to pay a $100,000 fine, and forfeited $900,000 from illegal proceeds.[xxxiv] The worker’s boss, a “former veterinarian[,] was sentenced to eleven years in prison,” ordered to pay a $250,000 fine, and “forfeited $13.5 million worth of proceeds from his illegal PED sales.”[xxxv] Jorge Navarro was a part of the investigation and was ultimately sentenced to five years in prison.[xxxvi]
These types of punishments are necessary to deter would-be violators. In combination with HISA, the government must continue to pursue these convictions in order to save horses and ultimately change the sport of horse racing for the better.
[i] Richard I.G. Holt, Ioulietta Erotokritou-Mulligan & Peter H. Sönksen, The History of Doping and Growth Hormone Abuse in Sport, 19 Growth Hormone and IGF Rsch. 320, 320 (2009).
[ii] Id. at 321.
[iii] Id.
[iv] Id.
[v] Id.
[vi] Holt, Erotokritou-Mulligan & Sönksen, supra note i, at 321.
[vii] Ryan Goldberg, The Long History of Horse Racing’s Addiction to Doping, Pac. Standard (June 14, 2017), https://psmag.com/social-justice/derby-win-horse-racings-doping-addiction-80640 [https://perma.cc/BGU7-4P9A].
[viii] Ryan Goldberg, A History of Drugs in Racing, Thoroughbred Daily News (May 2, 2013), https://www.thoroughbreddailynews.com/pdf/magazine/Magazine-Drugs%20in%20Racing-Part%20I.pdf [https://perma.cc/CV8C-Y4CS].
[ix] Id.
[x] Id.
[xi] Id.
[xii] Jill Riepenhoff, Conner Hendricks & Lee Zurik, Betting on Change: Horseracing long plagued with scandals and equine fatalities, WABI-TV (May 9, 2022, 2:13 PM), https://www.wabi.tv/2022/05/09/betting-change-horseracing-has-long-been-plagued-with-scandals-equine-fatalities/ [https://perma.cc/LX7C-6VUS].
[xiii] Id.
[xiv] Ryan Goldberg, War on Drugs? Vet Records and State Rules Say No, Thoroughbred Daily News (May 10, 2013), https://www.thoroughbreddailynews.com/pdf/magazine/Magazine-Drugs%20in%20Racing-Part%20II.pdf [https://perma.cc/5M6W-VPC7].
[xv] Renee Hickman, Gov’t Wants Max Sentence For Convicted Horse PED Seller, Law360 (Sept. 2, 2022, 5:01 PM), https://www.law360.com/articles/1526949/gov-t-wants-max-sentence-for-convicted-horse-ped-seller [https://perma.cc/CMU6-6ZAQ].
[xvi] Riepenhoff, Hendricks & Conner, supra note xii.
[xvii] Goldberg, supra note xiv.
[xviii] Jesse Hyde, The ‘Juice Man’ and the Drug Scandal That Rocked Horseracing, Bloomberg (July 6, 2021, 1:50 PM), https://www.bloomberg.com/news/features/2021-07-01/inside-the-doping-scandal-that-rocked-horse-racing?leadSource=uverify%20wall [https://perma.cc/H3EH-AF83].
[xix] Riepenhoff, Hendricks & Conner, supra note xii.
[xx] Id.
[xxi] Id.
[xxii] Stephen Whyno, EXPLAINER: Derby winner’s failed test latest in horse doping, ABC News (May 10, 2021, 3:20 PM), https://abcnews.go.com/Sports/wireStory/explainer-derby-winners-failed-test-latest-horse-doping-77606693 [https://perma.cc/Q5DB-2CVC].
[xxiii] Stephen Edelson, Doping scheme leads to 19 horse deaths at Monmouth Park, Times Herald-Record (Mar. 17, 2020, 4:35 PM), https://www.recordonline.com/story/sports/horse-racing/2020/03/17/doping-scheme-leads-to-19-horse-deaths-at-monmouth-park/111808784/ [https://perma.cc/Q9HV-S336].
[xxiv] Gary B. Graves, Medina Spirit stripped of Kentucky Derby victory due to positive drug test, PBS (Feb. 21, 2022 6:53 PM), https://www.pbs.org/newshour/nation/medina-spirit-stripped-of-kentucky-derby-victory-due-to-positive-drug-test [https://perma.cc/3EE3-N56Y].
[xxv] Id.
[xxvi] Id.
[xxvii] Madeline Orlando, HISA Enters the Starting Gate July 1; Texas Balks, 12 Nat’l. L. Rev. 265 (June 29, 2022).
[xxviii] Horse Integrity and Safety Act, H.R. 1754, 116th Cong. (2020).
[xxix] Id.
[xxx] Hickman, supra note xv.
[xxxi] Pete Brush, Woman Gets 3.5 Years For ‘Peddling Drugs’ That Hurt Horses, Law360 (Sept. 8, 2022, 6:27 PM), https://www.law360.com/articles/1528661/woman-gets-3-5-years-for-peddling-drugs-that-hurt-horses [https://perma.cc/U572-DHV4].
[xxxii] Id.
[xxxiii] Hickman, supra note xv.
[xxxiv] Brush, supra note xxxi.
[xxxv] Rachel Scharf, Veterinarian Gets 11 Years in Horse Doping Crackdown, Law360 (July 11, 2022, 8:21 PM), https://www.law360.com/articles/1510360/veterinarian-gets-11-years-in-horse-doping-crackdown [https://perma.cc/TME6-966B].
[xxxvi] Brush, supra note xxxi.