Out-of-competition testing of racehorses has broad support, but important issues, such as the constitutional rights of licensees, have made use and enforcement difficult for regulators, panelists said Dec. 11 during the University of Arizona Symposium on Racing and Gaming.

Alan Foreman, chairman of the Thoroughbred Horsemen’s Association (THA) and an attorney, said out-of-competition testing rules are in place for 24 racetracks, most of them the larger operations in North America. But many industry stakeholders don’t understand how it works or the restrictions that go along with it.

"I don’t think in today’s sports world you can ignore the issue of out-of-competition testing," Foreman said. "You can’t ensure integrity without it. But it’s not illegal for a horse to have a substance in its system when it’s not racing."

Out-of-competition testing is designed to detect the use of substances such as blood-doping agents and "emerging drugs," such as peptide venoms that can have pain-killing effects, Foreman said. Horse racing’s program and resulting testing protocol is similar to the one used for the Olympics, he said.

"We’re targeting the same things," Foreman said. "We have to be concerned about substances that mask pain. We compare favorably to the Olympic movement. But most jurisdictions don’t have the personnel to do it. We need to get a more robust out-of-competition testing program in horse racing.

"This is more important than testing for 24 therapeutic drugs," he said. "Those aren’t the drugs compromising racing."

Foreman and attorney Andrew Turro, of the firm Meyer, Suozzi, English, and Klein, discussed the complications with the New York out-of-competition testing regulations. The New York Racing Association and the New York THA both sought the regulations, but they were "fatally flawed," Foreman said.

The New York THA worked with the former New York State Racing and Wagering Board to alter the regulations for Thoroughbreds. Turro, meanwhile, has spent about four years in court fighting the Standardbred regulation, which wasn’t changed.

Turro said the language in out-of-competition regulations must be constitutional on the state and federal levels, not be arbitrary and capricious, and must fall under an agency’s statutory authority. He gave multiple examples of how the Standardbred regulation violated those principals.

"I don’t think anyone would challenge the wisdom of drug testing or out-of-competition testing, but at the same time (industry stakeholders) are invested in having regulations that are fair to everyone involved," Turro said.

Turro noted the United States Supreme Court has determined that a horsemen’s state license is protected property under due process of the U.S. Constitution.

Foreman said the New York out-of-competition regulation is a "poster child" for the battle between public policy and the legal rights of individuals.

Steven Lehman, chief executive officer of the Ontario Racing Commission, said the province has developed an out-of-competition system that has been accepted by the industry. Officials rely on intelligence-based regulation and must establish "reasonable grounds" to pursue a case, he said.

Lehman also noted Ontario regulators have an intelligence network that goes well beyond the province’s borders. He called illegal equine drug use "an international problem."