Andrew Turro Quoted in NYLJ, "Judge Nullifies Rules for Testing Harness Race Horses for Drugs"

Media Source: New York Law Journal

The system the state attempted to implement for testing harness race horses for performance-enhancing drugs is unfairly onerous and oversteps the state Racing and Wagering Board's powers to regulate New York's seven harness tracks, a judge has concluded.

Acting Supreme Court Justice Mark L. Powers in Schenectady County (See Profile) found the Out-of-Competition Testing Rules 'so lacking in reason as to require nullification in their entirety.'

Among other things, the regimen adopted by the board in 2009 requires that horses be tested within 180 days of when they may be raced at New York tracks—a provision that horse owners argued is both expensive and unreasonable, given that they often do not know months in advance which horses will be running.

Justice Powers agreed that the 180-day rule is 'arbitrary' and without basis in the science of detecting drugs in horses.

He also concluded that the board's testing rules violated the state's Racing, Pari-Mutuel Wagering and Breeding Law by attempting to extend the board's regulatory powers to horses stabled out of state and to the owners of those stables. The law empowers the board to direct 'equine drug testing at race meetings.'

In addition, Justice Powers wrote in Ford v. New York State Racing and Wagering Board, 2010-0303, that testing methods required by the board do not seem to be particularly effective at detecting the latest performance enhancements. He said the board may well be 'shoveling sand against the tide' of race-horse doping.

'In this Court's view, 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,' he wrote. 'It is disingenuous for the Board to empower itself with, essentially, carte blanche discretion to test whomever, whenever for whatever and then merely pledge to exercise good judgment over such unfettered power.'

The judge also questioned whether the severe penalties adopted by the board—10-year suspensions of the licenses of owners, trainers or drivers of horses discovered to have performance-enhancing drugs in their systems—are excessive.

The board adopted the rules in December 2009, saying that better testing was needed in the name of protecting the integrity of harness racing and the confidence of the public in the sport.

But the plaintiffs secured a temporary restraining order from Manhattan Supreme Court Justice Eileen A. Rakower (See Profile) on Jan. 7, 2010, prohibiting the board from enforcing the new rules after the justice determined that there was a likelihood the plaintiffs would succeed on the merits of their case. The action was later transferred to Schenectady, where the Racing and Wagering Board is headquartered.

In the interim, the board has required the testing of the first-, second- and third-place finishers in all harness races for banned substances.

The plaintiffs included the Standardbred Owners Association of New York, U.S. Trotting Association director Mark Ford and veteran horsemen.

Andrew J. Turro of Meyer, Suozzi, English & Klein in Garden City represented the plaintiffs.

'We think that the court got it right and they spent a lot of time getting it right,' Mr. Turro said in an interview yesterday.

He said Justice Powers could have limited his ruling to the threshold issue of whether the board had the authority to adopt the rules. But the judge went on to explore problems with individual provisions of the rules, such as the fact that banning protein and peptide-based substances also would prohibit the use of legitimate treatments of race horses by veterinarians.

Mr. Turro said Justice Powers was clearly attempting to give the board guidance on what it should and should not include in a testing system, if the board attempts to issue new rules.

Mr. Turro stressed that the plaintiffs are in favor of testing for banned performance-enhancing drugs in harness horses, but not the system adopted by the board.

Lee Park, a spokesman for the Racing and Wagering Board, said yesterday the agency is still reviewing the decision and declined further comment.

He said board officials are working on a new set or rules that would address many of the problems the horsemen raised in their suit. He added that the board is not ready to release the revamped rules.

Assistant Attorney General Christopher W. Hall and Racing and Wagering Board counsels Robert A. Feuerstein and Rick Goodell defended the agency.