The Latest Crisis

by Bill Oppenheim
One of the things which struck me in the aftermath of the latest crisis to hit American racing, last week's PETA/New York Times undercover expose of life in trainer Steve Asmussen's barn, is how reactive this business is (including this columnist: I'm reacting). Dozens and dozens of people from dozens of organizations have spent thousands of hours trying to move the needle, but in spite of all these efforts, as an entity 'American Racing' does just seem to lurch from crisis to crisis. On the one hand, there has been considerable progress in some areas in the six years since Eight Belles broke down and died in front of a national television audience after running second to Big Brown in the 2008 GI Kentucky Derby. On the other hand, nothing has really changed–'American Racing' is still a rudderless ship. 

I was pleased to read that owner Ron Winchell and his manager, David Fiske, chose not to make Steve Asmussen the scapegoat (though long-time assistant Scott Blasi, predictably, had to fall on his sword). It's not his fault the system is deeply flawed. I've written before about how the system for funding purses for British racing is an outdated patchwork which yields an unacceptable outcome, but that is nothing compared to the legal stalemate now paralyzing American racing. 

The fundamental problem, simply put, is that no one is in control. There is no central authority to set and enforce policy, not to mention to create national promotional or even just awareness campaigns. Thoroughbred Horse Racing has a lot to recommend it, as is illustrated by how it may be classified: sport, business, industry. Agriculture, raising livestock, working outside, breathing air, working with animals. And we're a part of the entertainment business, partially the gambling sector of the entertainment business, but more besides that. People going to the racetrack, seeing animals, betting on the result if they choose (an intriguing world in itself), being outside, breathing air. And we are an industry, and big business, not just at the racetracks, but–before and after–in the auction rings and private markets. And we have great stories to tell. So it's not as though we have nothing to offer. 

But those aren't the stories people are hearing. I don't need to tell you. The U.S. is still the world's biggest producer of Thoroughbreds, yet its penetration and influence in international markets is receding. Racing in other countries is flourishing, expanding, and because North American rules are out of step with the international community–and because the top international operations don't have to have American horses, like they did 30 years ago–American Racing is patently losing international market share. It's no coincidence that the top five NA/EU sires at the 2013 yearling sales were all European-based; among the five they generated over $80 million in 2013 yearling sale revenue. That money overwhelmingly stayed in Europe; it wasn't spent in North America. I'm just saying. 

But let's go back to the fundamental problem. The inmates are running the asylum, no one's in charge, mob rule, chaos reigns–however you want to say it, progress is stymied. The real impediment to progress, for those who want it, is a provision of the 1978 Interstate Horseracing Act (which enabled betting through 'simulcasting' across state lines) which granted “horsemen's consent” to rule changes, meaning an “approved horsemen's group” in any state could block simulcasting if it didn't approve a proposed rule change. The rule change which horsemen's groups will not approve is to change the rule allowing race-day medication to a rule preventing it. It was an unintended consequence of an important piece of legislation 35 years ago, but nonetheless that is exactly where things stand right now. The Breeders' Cup tried to get a rule changed and ultimately couldn't get it done (ironic p.s.: a limited study done after last year's Breeders' Cup found the 2-year-olds which raced on Lasix bled more than those which didn't). TOBA tried to get it changed and couldn't get it done. The Jockey Club hasn't been able to get it done. State regulatory commissions are powerless to get it done. Who's left? 

The whole stalemate actually arises because of a provision in federal law; it's time for the advocates of progress to seriously go to the U.S. federal government to help us fix it. For advocates of the status quo–if you don't want change, but prefer to work with things as they are–then you need do nothing; you're in the driver's seat right now. My personal view–and I emphasize personal, not to implicate any other organization or publication–is that it's time to actively seek federal intervention. Whether this would be through amending the original 1978 Act and/or creating some sort of new Horse Racing Act, I don't know: we have lawyers for that sort of thing, don't we? And I know, a lot of people automatically say, almost a knee-jerk reaction, “oh, no, we don't want the federal government getting involved.” I understand that: the potential snafus are almost innumerable. But I'd guess the U.S. government would be quite happy to see a thriving, happy, economically productive, green agricultural sector in which it was asked to have limited oversight. Anyway, in my view, pragmatism should trump ideology almost all of the time, and certainly in a political context. Here is a suggested four-point plan: 

1. Remove “horsemen's consent” as a provision for simulcasting a signal for gambling purposes across state lines. This is, technically, what has enabled certain “horsemen's groups” to block change. Get rid of that provision and those groups would no longer have the power to block change. 

2. Mandate no race-day medication. 

3. Safe surfaces. Mandate that no racing license be granted to a racetrack where the rate of catastrophic breakdowns (a/k/a 'kill rate') is higher than the death rate on turf in North America, which is around 1.5 per 1000 starts. It's not as low as the 1.0 rate on synthetic, but turf after all is the international standard surface, so let's be reasonable. The failure of synthetic tracks in North America is in one sense appalling, and probably due to shortcuts in surface and maintenance; synthetic tracks seem to work perfectly well everywhere else. But ultimately the important thing is that the surface is as safe as possible, whether it's dirt, synthetic, or some new mixture in development. 

4. Set up some sort of national body to oversee Horse Racing in the U.S. There need to be some rules, and proper enforcement mechanisms for those rules; but there also needs to be a national body which can achieve national ambitions like promoting and growing the business–and just basically helping us stand on our own two (four?)–feet. Think of it as a public-private partnership. There really is tremendous potential to reverse the negative perception of 'American Racing,' both among potential domestic racing fans and among international professionals and fans alike. But not while federal law permits “approved horsemen's groups” to block progressive rule changes. 

In his closing remarks to the 2013 Round Table at Saratoga last August, Jockey Club Chairman Ogden Mills Phipps said: 

   “The international community is watching us closely, and still wondering why this country allows such liberal medication policies. We know that Congressional leaders are frustrated with the speed of our reforms, and if we don't get our own house in order, they'll do it for us. In fact, there are Congressional staff members in the room today, and others watching on the video stream. 
   “The facts are clear. If we care about the future of our sport, our equine athletes cannot be burdened by the taint of drugs. Other sports have suffered similar problems and taken hard steps to ensure clean competition. Thoroughbred racing must do the same. 
   “The Jockey Club has stated in the past it would support any means of achieving uniformity and reform. As you heard today, we are devoting countless resources to that goal. 
   “Our funding of the out of competition testing program is the latest example, but ladies and gentlemen, the clock is ticking. If the current medication reform effort stalls, The Jockey Club may well lend its support to federal legislation…” 

The thing is, for advocates of reform, the current federal law is effectively preventing progress in medication and other important reforms. We have to change that law.