ACEPROMAZINE USEF SUSPENSION & LAWSUIT: SIX THINGS YOU DIDN’T KNOW ABOUT THE CASE

The USEF faces yet another lawsuit regarding an owner/trainer suspension related to improper drug administration of a performance horse. Those affected (the “Petitioners”)  have filed suit under Article 78 asking a New York court to find the USEF’s findings were arbitrary, capricious and unreasonable. The specific issue involves GR 410, otherwise known as the “forbidden substances” rule. Under this rule, Fonteyn’s owners/trainer were suspended for two months (beginning January 1, 2016), fined $2,000 and ordered to return all prize money.

Within the mountain of paperwork filed in connection with this case are a few interesting arguments and ideas that may not have been on your radar before. I spent some time sorting through the briefs, transcripts, and USEF evidence file and I think you may be surprised at what I learned. 

1. The Facts & Defenses

The performance working hunter tested positive for 5.1 nanograms per milliliter ("ng/ml") of a metabolite of Acepromazine (“Ace”) in her urine after winning a class at WEF 6. A point of contention has been that her blood tested negative, and that the presence of Ace in her system was likely due to cross-contamination of meds meant for another horse. The Petitioner’s veterinarian signed an affidavit attesting that he had prescribed Ace pellets to the horse in an adjacent stall due to stall rest because of a tendon injury. Petitioner’s expert testified that the amount of Ace found in Fonteyn’s urine was likely a result of cross-contamination.

Interestingly, intent is not an element of proving a violation occurred. In other words, there is no burden on the USEF to prove that the Ace was intentionally administered to Fonteyn, or that Petitioner’s intentionally had Fonteyn compete with Ace in her system. All that is required is that there is substantial evidence to find she competed with a drug that might have affected performance. Although a change to that rule has been considered (and is discussed more below), the point is that “cross-contamination” is not exactly a defense. It’s something the hearing committee can consider, but at the end of the day, it’s not going to save anyone. Nor do I think it really should. It shows a certain amount of carelessness, if not recklessness, surrounding the feeding and medicating of the horses. Not just any horses, but performance hunters competing at a high level. Carelessness is not an excuse. At the end of the day, Fonteyn competed against a field of other horses with an unfair advantage, no matter how unintended or minute that advantage really was. 

 

2.  Exactly how much Ace was in Fonteyn’s System? 

 

Petitioner’s next argument is essentially that 5.1 ng/ml of Ace is not that much Ace, and that the USEF has no scientific basis to conclude that 5.1 ng/ml affected Fonteyn’s performance.

However, the USEF’s veterinary experts testified that when a horse presents with amounts above 2 ng/ml in their system, small dosage immediately prior to competition that would certainly affect performance cannot be ruled out. In other words, feeding her a handful of pellets right before going in the ring could have happened, and affected her performance. However, the experts also concede that it could mean a large dose was administered several days prior and that a small amount had not yet left the mare’s system.

The one undisputed fact is that there really is no way to tell. Without Petitioner’s admitting to dosing Fonteyn at any given time, the veterinary experts must consider all hypothetical situations to determine what most likely happened, and whether Fonteyn’s performance was affected.  This factual gap created a small space for Petitioners to argue that the 2 ng/ml threshold level is too low and scientifically unsupported….this is a unique argument to GR 410.   

 

3. The difference between GR 409 and GR 410

 

If you are like me, sometime while learning about this story you stopped and asked, wait, why is Ace permitted in any amount? Let’s take a few steps back to fully understand it. 

Unlike the last controversial suspension, this one was prompted by an alleged violation of GR 410 which regulates therapeutic use of “forbidden substances.”
 

The word “forbidden” is somewhat of a misnomer because under GR 410, forbidden substances are really substances that may be used for therapeutic purposes, but are prohibited when they are detected in amounts that “may affect the performance of a horse…” GR 410 regulates “[a]ny stimulant, depressant, tranquilizer, local anesthetic, psychotropic (mood/behavior altering) substance, or drug” that might affect performance. Importantly, this rule does not make “forbidden” substances actually forbidden in the way you might think. In fact, for the most part anything in this category is permissible, so long as it might not affect performance. This leaves open to interpretation when a horse’s performance is actually affected.

As a result of this vague language, threshold levels or “Screening Limits of Detection” (“SLODS”) must be set. For example, the USEF uses the SLOD of 2 ng/ml for Ace; any horse that tests above this amount is in violation of GR 410. In theory, this SLOD is set because it is supported by scientific evidence that in a majority of horses performance will be affected when 2 ng/ml of Ace is present in their system. It’s also the same SLOD used by the FEI for Ace.  

Fonteyn’s urine test results indicated 5.1 ng/ml of Ace, over two times the allowable limit. One of the main arguments Petitioners have made is that the USEF’s SLOD was arbitrarily chosen and has little scientific support as the permissible threshold of ACE in a horse’s urine.

Interestingly, this case departs from the last controversial suspension I covered because it involves a different rule. Inclusive tested positive for a “prohibited substance” as defined under GR 409.  All of the substances encompassed by 409 are banned in any amount, the theory being that they stand to have no therapeutic purpose and serve only to affect performance. In those cases, any detection of a prohibited substance is a violation.  

4. There is not a zero tolerance policy for tranquilizer’s in performance horses

One of the Petitioners’ main arguments is that GR 410 is not a zero tolerance policy, that some levels of Ace are permissible, but that the USEF is enforcing the rule as if it is a zero tolerance policy. In their brief, attorneys for Fonteyn’s trainer/owners takes good measure to point out that the policy itself is not the issue in this case. Specifically, they state: “[t]his case does not present the question of whether the Federation could or should hypothetically adopt a ‘zero tolerance’ enforcement policy for acepromazine or other forbidden substances.”  Rather, they propound the issue is whether the SLOD chosen is based on reasonable basis in fact.

I will admit, this point is a necessary one. As I read along I was somewhat surprised that there was not a zero tolerance policy for Ace in show horses. After all, it would be much easier to enforce, there would be very little to question when a violation occurred, and the straightforward nature of a zero tolerance policy would create a rule that could not so easily be challenged and litigated. Don’t think about that! Petitioner seems to be shouting. Look away from the obvious! And in reality, that is not the issue in the case. But it does make you think about it.

Even though it’s not the specific issue being litigated, it seems that Petitioner would support the rather obvious argument that Ace could be used for therapeutic purposes, and thus is correctly permitted in small doses so long the horse’s performance is not affected. For example, to keep an injured horse on stall rest calm so they don’t injure themselves more, or to keep a horse from getting worked up while shipping long distances, or possibly to keep a horse quiet and still for a procedure to be performed, or to have its ears clipped… All of these are acceptable and common uses of tranquilizers, why penalize a competitor for having small amounts in their system if we can’t prove it actually affected performance?

When considering this I was forced to ask, what possible therapeutic affect could Ace have that does not have a potential effect on the performance of the horse? Every single use of the tranquilizer I can think of results in a calmer, quieter, more still, less alert, less active horse. Is there really any other reason to use a tranquillizer? There are other legal drugs that relieve pain and inflammation, relieve allergies, address specific injuries, and even calm a horse. If your horse really does need a tranquilizer for any acceptable reason, then they probably should not be in the show ring any time soon thereafter. The danger is not only that you could be effectively cheating the competition, but also that you are navigating over a course of jumps on the back of an athlete that has had their reflexes dulled, and is experiencing a drug induced calm. Why do we want to risk it? Why is any amount permissible? If you ask me, zero tolerance IS the right way to go.

I believe the obvious dangers and unfairness associated with tranquillizing show jumpers is of a particular concern in this case because it involves a performance hunter competing at a high level, similar to the last controversial suspension. Fonteyn was not breezily carrying around a timid junior rider over 2’6 fences where she needed to be steady, smooth, and bomb-proof. Rather, she was jumping large fences guided by an experienced rider. Under these circumstances I find administering Ace is certainly not necessary, and considerably dangerous.

5.  Recent Efforts to Change GR 410

In the evidence file is a petition for a rule change to GR 410 from January 2015, complete with over five pages of signatures in support of a rule change. Instead of the current language in 410 that provides a “might affect the horse” standard, the proposed rule would provides a violation occurs when any metabolite of a forbidden drug were detected “in concentration detected by the USEF laboratory, there is reasonable scientific certainty, as established by credible scientific evidence, that such forbidden substance, in the concentration detected affected the performance of the horse…”  

Interestingly, the list of supporters for this rule change reads like a “who’s who” of show world with almost every high profile hunter rider, trainer and judge I can think of. It seems like virtually everyone was on board with this proposal in January 2015. So why didn’t it pass?

I would consider myself an outsider immersed in another industry just getting the tip of the iceberg on these issues. But when reading the proposed language to the rule change, I can’t say that I agreed with it, even with its overwhelming support. I found the language clunky, inapplicable, and difficult to enforce. For one, medical testimony is often given, “to a reasonable degree of medical probability.” By using the phrase, “reasonable scientific certainty” the rule may be creating it’s own standard with little precedent. In fact, that is a common problem when litigating these cases because there is little to no precedent when it comes to USEF violation challenges. Unfortunately, with every lawsuit that is rapidly changing.  

Secondly, “as established by credible scientific evidence” also seems problematic. Credibility is usually the determination of a fact-finder, like the judge or a jury. How does one determine what is credible scientific evidence, and who decides? The USEF hearing committee?

I’m sure all these wrinkles could be worked out, but I’m also sure there is an easier more straightforward way to accomplish a more transparent and effective rule. In court proceedings there is already a requirement that any scientific testimony be accepted within the scientific community.  Perhaps the USEF could benefit from broader rules that apply to each possible proceeding regarding any violation, rather than going through each rule as it’s challenged in the courts and then trying to add magic words.

I also felt like this rule change was generally headed in the wrong direction. Instead of making it less likely that someone will drug a competition horse, this rule change would make it more difficult for someone to be charged with a violation for doing so, with more hurdles for the USEF to overcome when establishing a violation occurred. I can see why it didn’t pass.   

There are good things about this piece of evidence though. Optimistically, it shows that the industry came together and tried to take a proactive step, rather than a reactive one (like the recent change to persons responsible). Too bad it wasn’t better crafted.

6.  Racing and Show Jumping are not the same thing

This is a rather obvious point that continues to be lost on those advocating for USEF policy changes, and continually irritates me. In my article I wrote a whole section on the fundamental differences between the two sports and why those who advocate for the USEF to adopt rules similar or identical to racing regulations are misinformed and, quite plainly, uneducated. (I will note that this argument is generally made by outsiders espousing a subjective view, i.e. New York Time’s journalists, lawyers advocating for their clients, and paid experts. Still not okay.)

The crux of Petitioner’s argument is that the SLOD for Ace should be set at 10 ng/ml because that is a more scientifically reasonable number they have in no way plucked out of thin air. And what do they use to support this new SLOD? A thirteen page study attached to Petitioner’s paid expert’s report. Great! Wonderful! What does the study say? Well, page one says the study was sponsored by the “Racing Medication and Testing Consortium” or “RMTC.” That makes sense, because the study is titled the “RMTC Acepromazine Threshold Withdrawal Study.” What does that mean, other than that it’s sponsored by a completely different sport? Although it doesn’t say what breed was used, it likely means that they probably only tested thoroughbreds. That’s problem number one since today warmbloods, warmblood crosses and ponies make up the majority of show jumpers.  Problem number two is that the study only used twenty horses. She also relies on another study that used only six horses.  The USEF’s expert pointed out any study with less than thirty horses is not reliable. Think of it this way, would you take a drug prescribed by your doctor that was tested on only thirty humans? I don’t think so.

Problem number three, and my biggest beef, is that RACING IS A TOTALLY DIFFERENT SPORT. Don’t get me wrong, I love thoroughbred racing, I think it is a noble and exciting sport. But it is the exact opposite of taking a show hunter to the ring. The simplest difference is that race horses are supposed to go fast, and show hunters are supposed to go slow. What is the possible advantage of a race horse being administered Ace before performing? There is none, it makes them lose. What is the advantage of Ace before a hunter performs? Less spooky, quieter, slower, calmer, smoother, less irritable, more willing… just to name a few.

So what? It’s still a scientific study. Sure, but think about the repercussions. Ace in racehorses is not really a big problem, because there is little advantage, and because there is less risk of being on a horse with dulled reflexes when you are running them in a circle and not steering them over a complicated pattern of fences. Therefore, setting the SLOD higher for racehorses may be more acceptable. But for show hunters, again, why risk it?

Petitioner also uses alist of Ace SLODs used by state racing authorities across the country to support their argument. Again, from a different sport with a different objective. I would go as far as to argue these SLODs are in inapplicable, if not wholly irrelevant.

(If you’re reading this and you still aren’t convinced that racing regulations aren’t right for the USEF, then please read this, where I make several more points on the issue).      

What do you think? Leave me a comment!

                     

*(The above is not intended to be legal advice. It's purely my opinion. It's meant to make you think about current events in our sport and how we can continue to improve it for the better.)