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Supreme Court strikes down NY out of competition testing rules
Friday, August 19, 2011 - from the Standardbred Owners Association of New York

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Yonkers, NY --- After an over three-year battle led by the SOA of NY and joined by the Empire State Harness Horsemen’s Alliance (comprised of the representative horsemen’s associations at Yonkers, Monticello, Buffalo, Batavia, Vernon and Saratoga) to achieve proper, fair and enforceable out of competition testing rules, a state judge has struck down the ill-advised rules that were promulgated over the horsemen’s numerous and valid objections.

By a decision filed on August 15, Acting New York State Supreme Court Justice Mark L. Powers ruled in Ford et al. v. The New York State Racing and Wagering Board that the Racing Board’s Out of Competition testing rules enacted on December 15, 2009 were, “so lacking in reason as to require nullification in their entirety.”

The Court began its analysis by recognizing that all parties, including the state’s horsemen, “concur that drug testing is essential to the harness horse racing industry, the betting public’s confidence and the health of racehorses.” The court then went on to fully agree with the horsemen that the Racing Board’s unilaterally adopted Out of Competition testing regulations were illegal, conceived in excess of the Board’s jurisdiction, arbitrary, capricious, overbroad, unconstitutionally vague and overly intrusive.

The decision of the Court recognized that in July of 2008 the SOA of New York conveyed to the Racing Board, in writing, various criticisms of the proposed regulations. The Court further found that not only did the Board fail to address or even reply to the horsemen’s concerns, but that the next thing the horsemen heard from the Racing Board was the pronouncement that the troubling, and now found to be illegal, Out of Competition testing scheme had been adopted by the Board. The Court then noted that the voiced concerns from the SOA of NY from three years ago all had merit.

Among the specific reasons the Court voided the testing scheme were the fact that the portion of the rule that allowed for testing of horses 180 days before they competed was arbitrary, overly broad, vague and, most importantly, devoid of any scientific basis. Further, the Court determined that the Board’s admissions that it did not intend to utilize sophisticated testing techniques that would have sufficiently allowed for a proper scientific testing protocol due to cost, “offer little solace to those affected by the Board’s reliance on antiquated testing protocols.” In sum, the Court ruled that the Board’s failure to employ less restrictive alternatives, notwithstanding associated costs, was “irresponsible.”

The Court further determined that requiring horses to be tested if found within 100 miles of a racetrack was arbitrary, capricious and without justification. The Court adopted the horsemen’s argument that the rule lacked proper enforcement efficacy, as ethical horsemen would be subjected to intrusive testing while unscrupulous horsemen could simply set up shop 101 miles from the racetrack. The irony of this was not lost on the Court: “It is illogical that in an effort to “catch the cheaters,” the Board itself creates a situation so easily subject to exploitation.”

Additionally, Judge Powers determined that the Racing Board’s attempt at self-imposed authority to enter onto private property is “overbroad and contrary to fundamental rights.”

In addition to the purely constitutional and legal defects of the testing scheme, the Court also addressed the rules’ internal inconsistencies with regard to medication administration. Here, the Court agreed with the submitted affidavits of a variety of veterinary experts that the face of the out of competition testing rules would prohibit, not to mention subject violators to penalties which “shocks the conscience,” administration of substances that are otherwise permissible therapeutics pursuant to other long standing Racing Board rules. As the Court aptly stated, “The difficulty of prohibited substances being both ‘prohibited’ and ‘permissible,’ depending upon the surrounding circumstances and purpose for administration, is that the Board could choose to invoke its severe penalties in situations when the particular substance was used properly for its recognized therapeutic value.”

Going even further, the Court surveyed the rules in other states and concluded that no other jurisdiction categorically bans all protein and peptide-based substances without regard to their therapeutic value. The Court was equally concerned with the Racing Board’s “most grave of departures” via its “complete omission of a ‘split’ sampling procedure necessary to safeguard against ‘false positive’ results.

Speaking for Petitioner Standardbred Owners Association of New York, its President, Joseph Faraldo, stated: “We could not agree more with Justice Powers' conclusion that there is an, ‘inherent unfairness to adopting rules that sweep across an entire Industry, looking for one bad apple and subject to all kinds of abuses in implementation and enforcement without any built-in protections for those affected and with disregard for their legitimate concerns. Rather than adopting a testing scheme that doesn’t snag the cheaters, we implored the Racing Board three years ago to amend their proposed rules so as to adopt a protocol that would efficaciously catch cheaters and punish them severely, while providing legitimate safeguards. That plea by way of industry input that was very detailed and practical fell on deaf ears, and Judge Powers' decision is thus a surprise to no one. The horsemen’s suggestions that were based on years of in-the-trenches experience were ignored and the result is that there is no meaningful reform."

In addition to the Standardbred Owners Association of New York, the petitioners were USTA director Mark Ford, SOA director and USTA district chairman John Brennan, veteran horseman Richard Banca, Sr. and SOA executive director George Casale.

The Petitioners were successfully represented by Andrew J. Turro, Esq. of the law firm Meyer, Suozzi, English & Klien, P.C.


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