HAPPENING NOW: TOWN HALL MEETING: ACCOUNTABILTY FOR D&M VIOLATIONS

Today, at 10:30 a.m. the USEF will host a town hall meeting to discuss "Accountability for D&M Violations." Members are encouraged to submit questions here. I know there are some things I am hoping they will answer. Below is what I submitted.

 

1. Recently, members who have faced penalties for violations have expressed a feeling of "unfairness" when they face fines for violations of which they had no knowledge and no intent. For example, contaminated grain, or following the proposed withdrawal times. Yet, they still faced fines. It seems intent and knowledge are only a part of the process when determining what penalty should be imposed, and not whether an actual violation occurred. Would the USEF be willing to re-write the rules to include intent and knowledge as an element necessary when proving a violation occurred? Why or why not?

2. It seems that gathering credible and reliable evidence is a problem whenever the hearing committee considers a violation. What steps could the USEF encourage to help members be prepared if they are faced with a violation? For instance, a medication and feed log for each performance horse would serve as an accurate record of what each horse has ingested at what time. Shouldn't the USEF take greater steps to encourage ways for members to protect the welfare of their horses before simply imposing harsh penalties when prosecuting violations?

3. Most of the litigation surrounding USEF violations centers on the alleged "arbitrary and capricious" threshold levels used during drug testing. It seems that without more scientific research in these areas, these thresholds will not be considered reliable. What can the USEF and its members do to enable and increase reliable scientific research in these areas? Is funding an issue?

 

4. The recent rule change for accountability seems to be "reactive", created as a direct result of a violation that occurred in the last year. What can the USEF and its members do to be more proactive with it's rules and any proposed changes?

5. Many people not in Kentucky and not on the circuit are still affected by these rule changes. In fact, every USEF member at every level is affected by these changes. Yet, the feedback and influence the USEF receives seems to be from the same group of professionals. What can the USEF and it's members do to include and consider feedback from competitors at all levels? 

USEF IGNORES PLEAS OF NO KNOWLEDGE, NO INTENT

On Thursday, the Chronicle of the Horse released an article regarding the most recent USEF violations, fines, and suspensions. Of particular interest are the stories surrounding Lynn Jayne of Elgin, IL, and Amanda Steege, of Ocala, FL. Both Jayne and Steege reported that the fines they accrued were unfairly imposed. And each employed arguments rooted in legal terminology to support their beliefs that no censures were warranted.

Jayne was fined $4,000 for violation of rules GR 410-11 when the presence of “gabapentin” was uncovered in the performance horse, “Confession.” Note, despite this horse’s name, no actual confession was obtained. Rather, Jayne combatted the charges by stating the horse was legally prescribed the substance by a veterinarian, and she had followed the prescribed withdrawal times as recommended by the USEF. In the case of gabapentin, it is 7 days.

Jayne brought up another interesting point. She argued that she should be found “no negligence”, an apparent possible outcome in FEI proceedings. I’m assuming the argument goes, “if I follow USEF guidelines and I test positive anyway I should not be held liable for this violation.” As agreeable as that is, it’s the use of the word “negligence” that intrigues me the most.  This is a legal term that, very generally, means that someone acted unreasonably when they knew or should have known their actions would lead to a foreseeable outcome. It follows that a finding of “no negligence” would mean the outcome was not foreseeable. In other words, there was no way a reasonable person in the same person’s shoe’s knew or should have known this outcome would occur. In this case it would mean there was no way that a reasonable person acting as Confession’s trainer knew or should have known that it was foreseeable for Confession to still be affected by the gabapentin 7 days after withdrawal.

This is interesting because even accepting Jayne’s defense that she followed the recommended USEF withdrawal guideline,  the $4,000 fine was imposed. Although she received no suspension, this seems harsh for someone that followed USEF guidelines. You may ask, how could that be? How could she be “guilty” at all if they believed her story? The answer: negligence is not a part of finding a GR 410-11 violation occurred.

Notably, the USEF does state on it’s “Official Notices” that several factors are taken into account when determining a penalty for a violation, including whether the violation was intentional or unintentional, and the nature of the violation. But these are not considerations when determining whether or not a violation occurred. It’s an “after the fact” consideration. The process goes something like this: We find a violation occurred; we will consider several factors when imposing a penalty.

The best legal analogy I can give is the difference between a verdict and sentencing. When a criminal is on trial, the jury will deliver a verdict of guilty or not guilty after hearing all of the evidence. Once the jury has determined whether the defendant is convicted or acquitted, the judge will then determine the sentence for the crime. Meaning, the judge will determine the penalty or punishment. All the jury does is determine whether the defendant committed the crime beyond a reasonable doubt.

In the case of a USEF proceeding, the hearing committee does not consider things like negligence, intentional, or knowing conduct when determining if a violation occurred. Based on all of the transcripts and hearings I’ve read over the last several months, if the test results are there, and there is no other explanation proven, then the USEF figures a violation occurred. Negligence, intentional conduct, and acting knowingly or recklessly are all factors considered only after the fact when the committee gets to the “sentencing” phase.

This is rather unique. In most criminal and civil cases in the United States, negligence, recklessness, knowledge and intent are actual elements of the crime. This means you cannot be found guilty in the first place without the state proving one of these elements. In other words, a defendant would not even get to sentencing without the state proving to a jury that they committed an act knowingly or intentionally, or even recklessly. But here, in USEF world, that is a consideration after the fact. A violation occurred, but you didn’t mean it, so we will only fine you $4,000. What I think Jayne means in her argument is that this should have been a consideration BEFORE she was found guilty of a violation. Meaning, because there was no way she knew or should have known that Confession would test positive, she should not have been found guilty at all.

Practically, this is an excellent argument. She did not intentionally, or even negligently do anything wrong. But the rules are against her. USEF rules are, for lack of a better term, strict liability. Horse tests positive based on “sufficient evidence” = you violated a rule. That doesn’t mean the penalty will be harsh. But it means you violated. (Note, the USEF did state this was a “unusual factual context” and later changed the recommended withdrawal time to 14 days.)

Steege’s argument is similar. She faced a positive drug test for caffeine in the performance horse Capricette at September 2014 Hits on the Hudson. Steege also appealed to the FEI and mentioned research that positive caffeine levels often comes from grain contamination. More interestingly, Steege argues she did not “knowingly” give Capricette caffeine. Rather, Steege attributed it to a grain contamination especially in light of the fact that Capricette was receiving different grain then all the other horses in her care, which would explain why none of htem tested positive. Even after the USEF President reviewed her case, Steege still faced a $1,000 fine or to request a hearing.

Not surprisingly, Steege declined a hearing. Based on other recent hearings, its predictable that having one would not change the USEF’s decision.  Rule 410-11 does not prohibit “knowingly administering” illegal substances. It only outlaws the presence of those substances in a horse’s system. Thus, even with no knowing, intentional or negligence conduct, Steege is still on the hook.

If USEF members want things like intent, knowledge and negligence to be a part of the process when determining if a violation occurred (which it seems they do) then perhaps they should advocate for the rules to be re-written. The push back I predict is that determining intent and knowledge is difficult and can generally only be proven by circumstantial evidence (you can’t see into someone’s mind and see if they knew or intended the result). This can drag out and require a significant amount of evidence collateral to the actual issue. Meaning, what would be a straightforward proceeding over test results would become a case where attorneys quibble over what person knew what and at what time. It’s not surprising that intent is not a part of the rule as it stands, but maybe in the interest of fairness it should be.