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Krysia Nelson
January 12, 2017
Doping vs. Fair Play
By Krysia Nelson
Thursday, January 12, 2017 :: Posted 03:11:33 PM EST


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Moments after the first horse entered the ring to compete on the first day of the 2017 Winter Equestrian Festival, USEF blast e-mailed a press release announcing lengthy suspensions imposed on two renowned hunter trainers for doping violations involving the illegal administration of multiple “quieting” substances.  Trainer Larry Glefke and his partner, rider Kelly Farmer, will be suspended for twenty-nine months and one year (respectively), after a horse they competed tested “positive” for GABA.  The lengthy terms of suspension were in part based on prior violations where their horses tested positive for acepromazine and reserpine.  The press release also suggests that the Hearing Committee’s decision to impose the harsh penalties was based, in part, on Mr. Glefke and Ms. Farmer’s failure to attend the hearing that was scheduled in their cases.
  
The timing and substance of USEF’s press release sends a clear message on the following points:

        #1 – Going forward, the penalties for doping violations are going to be harsh

        #2 -  If you are invited to appear before the Hearing Committee, you had better show up

I have always counseled clients that “no showing” at your own hearing is a bad idea, and indeed the harshest punishments tend to fall upon those who don’t show up to explain themselves to the Hearing Committee.  This is not to say that showing up is the key to leniency, but it is simply a good idea to show a healthy dose of respect to the people who hold in their hands the key to your competition privileges.

And yet, someone charged with a doping violation has little or no defense.  So when I tell clients they have to go to their hearing, their response is frequently “What’s the point, if I basically have no defense and am going to get set down anyway?”  That’s a hard question to answer.

With all due respect to USEF’s mission of protecting horse welfare and preventing sport horse “doping,” imposing harsher punishments without significantly reforming the prosecution and hearing process is a bad idea.  Don’t get me wrong – it is an important part of the equation, but our sport (and specifically the hunter discipline) needs to be reformed through a more comprehensive plan that includes fixing a system perceived by most to be fundamentally unfair.  To many (if not most) this perception of unfairness de-legitimizes the punishments that are being imposed.  I have written extensively on the flaws I perceive in USEF’s policies and system of prosecution, and I won’t repeat them all here.  Obviously, any kind of change will necessarily be slow, and incremental, so I’d like to focus on one thing USEF can do right now to take another step in the direction of reform.

Because if USEF wants “fair play” for competitors, it should aspire to “fair play” itself.

Last year, just as USEF announced the implementation of the Equine Drugs & Medications Penalty Guidelines, FEI amended the FEI Equine Anti-Doping and Controlled Medication Rules to introduce the concept of “Specified Substances” and recognizing that it was possible for certain substances to enter a Horse’s system inadvertently due to a credible non-doping explanation.  What does that mean?  It means that the FEI – which undoubtedly takes a stricter approach than USEF to medications regulation and doping – adopted what amounts to an environmental contamination defense that gives the FEI and/or the FEI Tribunal more flexibility when prosecuting a case or when making a sanctioning decision.

Still unclear?  Let me explain.   Sport horses have a tendency to “test positive” for certain “prohibited substances” as a result of environmental contamination.  For example, FEI saw a spike in positive tests as a result of horses ingesting toxic weeds either while grazing or as a result of feed contamination.  The problem in Europe seemed particularly bad, with a number of cases linked to poppy seed contamination.  What makes the poppy seed cases so compelling is that one of the metabolites involved has a very narrow therapeutic margin and very high toxicity levels.  In other words, the horses test for something that no one in their right mind would ever deliberately administer to a valuable sport horse.  Banned substance?  Of course.  But what is accomplished by punishing someone for their horse accidentally ingesting something that had no performance enhancing effect?  Nothing.  So FEI passed a rule that basically affords a defense to anyone who can establish a “credible non-doping explanation” if their horse tests positive for certain substances.

Doesn’t that sound incredibly fair and reasonable?  So why doesn’t USEF have a similar rule?  In fact, when FEI’s rule went into effect last January, I waited anxiously to see if USEF would take the path of least resistance and simply adopt FEI’s rule.  Blatant plagiarism was called for, plain and simple.  

But it turns out I was bound to be disappointed.  And now, a year later, we are starting WEF with USEF’s battle cry and the public lynching of two prominent professionals.  While some are cheering, leave it to me to sound the tone of caution: it is easy to celebrate this as a victory for horse welfare and clean sport, but how great will this victory seem when you (or someone you like) gets a notice of violation that their horse tested positive for some random environmental contaminant?  It wasn’t that long ago that a prominent hunter trainer was set down after a horse in his program tested positive for trace amounts of acepromazine as a result of cross-contamination from a stablemate.  The trainer and his owner unsuccessfully fought that violation – unsuccessfully because USEF has no environmental contamination defense built into its doping prosecution procedures.  

The number of environmental contamination cases before the FEI seems to be on the rise.  Recently, a rider was vindicated after establishing she (personally) had been prescribed a medication (that was an FEI banned substance) that apparently entered her horse’s system through skin to skin contact: she took the drug and then applied DMSO to her horse without gloves; the DMSO acting as a conduit for the substance between her and her horse.  That’s an environmental contamination defense at its finest.  Why is such a defense good enough for the FEI, but not for USEF?

The harsher the penalties, the more important the fairness and integrity of the prosecutorial and hearing process.  So while I applaud USEF for taking a firm anti-doping stance, it should be mindful of its responsibility to pursue its mission and administer its program in a fair and reasonable fashion.


QUESTIONS? COMMENTS?

Write to Krysia at kcnelson@kcnelsonlaw.com

Krysia Carmel Nelson, Esq. earned her B.A. from Dartmouth College and her law degree from Villanova University. In private practice, Ms. Nelson represents leading horse owners, trainers, riders, breeders, equestrian facilities, major farms, clubs and associations across all nationally and internationally recognized disciplines. A frequent speaker at industry conferences, including the National Equine Law Conference, she has taught at the Washington & Lee University School of Law in Lexington, Virginia and during the 2012 WEF she taught "Equine Law 101."  A lifelong equestrian, she still competes regularly on the "A" show circuit in the amateur hunter divisions.   


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