Full Title Name:  Avoiding a Triple Frown: The Need for a National Horse Racing Commission

Introduction

Known as the “sport of kings”, horse racing has enjoyed a long and prosperous tradition that dates back to the late 1100s. [1]   Developed as a popular amusement, contests of speed between horses are among the oldest diversions of humankind. [2]   Horses have always been known for their majesty around the racetracks, something that has continued to this day.   For those children lucky enough, one always remembers the first day their parents took them to the track to see these beautiful creatures in action.   Growing up on Long Island, I have had the opportunity to frequent Belmont Park to witness these horses in their glory.  

Unfortunately for most horse racing fans, the horse racing industry has not followed suit with such grace and glory.    Through recent times, the industry has become overwhelmed with issues that have affected the welfare of horses.   Without a centralized authority to govern the sport, horse racing has also become infested with drugs, such as steroids and painkillers used to enhance racehorse performance. [3]   The problems of the industry have led to two highly publicized horse breakdowns in two of the three races of the Triple Crown. [4]   These high profile incidents have showcased the shortcomings of the industry to regulate the sport and finally put the spotlight on the industry as a whole.   

Currently the horse racing industry is represented by the National Thoroughbred Racing Association (NTRA).   It is a coalition of horse racing interests that consist of the leading racetrack owners, trainers, affiliated horse racing associations, horse owners and breeders. [5]   The organization sees itself as a body to “serve the industry as a consensus builder around solutions to problems of national importance to the horseracing industry.” [6]   This organization is not capable of fixing the problems that face the industry on its own because of its lack of authority, as it can only recommend certain reforms. [7]  

Each state regulates the industry through its own racing commission, as a member of the Association of Racing Commissioners International (RCI). [8]   The RCI provides services to these members and helps promulgate national standards for the industry, but the states themselves regulate their individual activities.   The fragmented system allows states to freely accept or decline certain regulations for their own racetracks. [9]   This lack of uniformity has created a need for a central governance that can research and mandate a consistent set of rules that will assure an even playing field.   A central authority will also be able to respond to issues more effectively than the current organization allows, which will ensure that the horses are further protected.  

This paper will highlight the problems of the horse racing industry in an effort to advocate why a national horse racing commission is needed.   As currently positioned, the industry has failed to address these problems causing not only a decline in the sport, but also contributing to the many horse breakdowns on the track.    With each state having its own racing commission to regulate the sport in that state, the industry as a whole has remained fragmented.    Through its commerce powers, Congress could and should mandate a national horse racing commission with a standardized set of mandatory rules for the entire sport.   This will alleviate many of the problems that face the industry and make it more efficient to deal with problems in the future.     

I. Infamous Horse Breakdowns

A. Barbaro

In the 2006 Preakness, the second leg of the Triple Crown held at the Pimlico Race Course in Maryland, a horse named Barbaro suffered an injury that received more public attention than any in the sport. [10]   With a convincing win in the Kentucky Derby, many had Barbaro penciled in as the sure winner of the Preakness. [11]   Many people even thought he would be the first horse to capture the Triple Crown since 1978. [12]   Within seconds of the race, Barbaro was pulled up by his jockey with an apparent injury that turned out to be a major fracture above and below the ankle. [13]   What was once a chance to win the Triple Crown soon morphed into a frantic fight for his life, as these injuries are usually life threatening. [14]   Barbaro’s struggle with major reconstructive surgery became a media circus, as he garnered the support of the record crowd of 118,402 at the event and the millions watching at home. [15]  

After an eight-month battle, Barbaro was euthanized when laminitis, an infection that attacks the hoof of a horse, put an end to his chances of becoming a stallion. [16]   While the public response to Barbaro’s injury was admirable, had the accident not happened on national television, many experts believe that a horse with a similar injury would have been euthanized on the track. [17]   For example, a horse named Magic Man broke both his front legs during a race at Saratoga Race Course. [18]   A relatively unproven racing career delegated him to euthanization on the track. [19] Barbaro’s dominance at the Kentucky Derby and his misfortune as the Preakness Stakes captured the hearts of so millions, making the horse a popular sports hero and allowing the industry to mask the problems that would soon come to light.

B. Eight Belles

With the shock still in the hearts of those made familiar with the Barbaro tragedy, Eight Belles collapsed with two broken ankles after finishing second at the 2008 Kentucky Derby. [20]   As a filly, a female horse, Eight Belles was a major attraction to a crowd of 157,770. [21] This all ended when the horse broke down shortly after crossing the finish line. [22]   Unlike Barbaro, there was no saving this horse and she was euthanized on the track. [23]  

II. Congressional Hearing and the problems that face the horseracing industry

Having two horses suffer such severe injuries on national television, created questions as to whether the conditions of the industry have become too dangerous for the horses.   Some critics have blamed the surface of the racetracks, urging the sport to collectively change to a softer surface like synthetic turf. [24]   Others have cited the use of medications and emphasis on speed training that has weakened the durability of these horses. [25]   What was clear was that the industry was in disarray, incapable of solving the problems itself.  

After the Eight Belles tragedy, the House Subcommittee on Commerce, Trade and Consumer Protection held a hearing on June 19, 2008 entitled “Breeding, Drugs, and Breakdowns: The State of Thoroughbred Horseracing and the Welfare of the Thoroughbred Racehorse.” [26]   The hearing questioned the industry’s lax drug policy, faulty breeding and the alarming amount of horse deaths that have continued to result. [27]   The panel also considered endorsing a central authority for the sport to solve these problems and warned that it could be done by federal regulation. [28]   With an industry that has 38 different state racing jurisdictions, all with their own sets of rules and regulations, Congress was clear in their threat for federal regulation if the following problems were not fixed. [29]

A. Drugs

While all sports fans are likely aware of the widespread use of steroids that has occurred in other sports in the past few years, the effect they have on the horse racing industry has gone relatively unnoticed.   If steroids can make a human athlete run faster and tackle harder, what would stop trainers from experimenting with these drugs to make their horses faster and stronger as well.   Unlike European and Asian racing regulators who monitor and issue harsh penalties for the use of anabolic steroids, some states still allow racehorses to be treated with them. [30]   Although there may be a legitimate use for such drugs, [31] their use creates uneasiness amongst other trainers, feeling that they are at a disadvantage if they do not use similar medication. [32]  

With the thought that their opponents are using steroids, trainers have begun to use them just to remain competitive. [33]   The abuse of these drugs then becomes widespread as the minority becomes those trainers that are not using steroids.   With an animal that weighs at least 1,000 pounds and has legs that are supported by ankles the size of a human’s, [34] forcing them to run faster than they are naturally capable can be catastrophic. Considering the high risk of injuries they already face, steroids only increase this risk by dramatically increasing the muscle mass of their fragile bone structure. [35]

The Racing Medication and Testing Consortium, an industry-funded group that formulates policies for the U.S. racing states, proposed a regulation in 2007 permitting anabolic steroids for therapeutic use only. [36]    The problem with this organization is that their reports are only recommendations and while many states have begun to implement these recommendations, they are not bound to do so.   This again highlights the overall ineffectiveness of the industry, as there is no one authority mandating that changes be made to the sport.   Leaving the decision to regulate steroids up to the 38 different racing commissions makes any regulatory process a slow and arduous one.   

Credit does need to be given to those states that have in fact passed bans on steroids.   Almost every state has enacted the language of the model rules proposed by the Racing Medication and Testing Consortium. [37]   The most significant accomplishment occurred at the 2009 Kentucky Derby which marked the first time thoroughbred racing screened for steroids, examining the top four finishers of the Derby. [38]   Although the new steroid rules show an effort by the state racing commissions to solve some of these problems, the pace at which it was done highlights the industry’s ineffectiveness to deal with current issues.   While the model rules were first issued in 2007 [39] , it took every state additional time to finally adopt the rules, with some taking almost two years to do so. [40]   A national racing commission with the authority to pass industry wide regulations, not having to wait for the individual states to follow suit, would allow the industry as a whole to deal with these problems more efficiently.

Also, if all drug regulations are not the same, problems will continue to arise.   Kentucky recently approved a proposed ban that would outlaw anabolic steroids for horses in competition, but allow veterinarians to administer doses of three naturally occurring steroids for therapeutic purposes. [41]   New York later followed suit and placed a similar ban, imposing rigid limits on four steroids and banning the rest.   One of the four steroids permitted with restricted use was stanozol. [42]   In Kentucky, Winstrol is completely banned as Chairman of the Equine Council, Jerry Yon, explained, “Our rules are stricter than anybody else’s, everybody else says you can use stanozol. We hate that drug.” [43]

This is why the horse racing industry needs a central authority, to pass uniform regulations.   To have two states, both of which host a leg of the Triple Crown, implement varying policies, shows the disconnect between the state commissions.   While the states should be commended for conceding that steroid abuse in horses is dangerous, their inability to reach common ground on such restrictions creates confusion and undercuts the main goal of protecting the welfare of these horses.   Horses that may be fit to race in New York can still be found in violation of Kentucky’s steroid policy.   With the long amount of time it takes for horses to discharge certain steroids, horses racing in one jurisdiction that allow a certain kind of steroid, will likely not clear a test in another state that bans such medication. [44]   This makes uniformity essential for these regulations and the only way to achieve that is with a centralized authority.

Steroids may not even be the biggest drug problem in the industry.   A drug like Lasix, which is allegedly used as a means to prevent Exercise-Induced Pulmonary Hemorrhage, has also been proven to make the horses run faster. [45]   Many studies have shown that Lasix does not help the bleeding in the lungs. [46]   Reports, do show, however that horses taking Lasix experience a sudden loss of weight due to water loss, which results in an increase in speed. [47]   This drug is also banned by the World Anti-Doping Agency because it can be used to mask the presence of more powerful illegal stimulants. [48]   Lasix is a permitted race day drug, as 88 of the 92 horses entered to run at Belmont Park this year were medicated on the drug. [49]  

Cobra venom and morphine have also been used on horses to mask pain, allowing a horse to run through possible stress fractures or fatigue that would slow a horse not on these substances. [50]   While there is currently no test for cobra venom, it is prohibited in all racing jurisdictions. [51]   Cobra venom was found during the inspection of a successful horse trainer, Patrick Biancone’ s barn early last year, [52] which showed that this substance has found its way into the horse racing industry.

B. Weak penalties

Since horses cannot control the substances they put into their bodies, the penalties need to be administered to their trainers.   This is where the industry has significantly fallen short.   Without tests for certain substances and weak penalties given to trainers who are caught violating these rules, there is really no deterrent for trainers to stop experimenting with performance enhancing drugs.   With six of the nation’s top ten money winning trainers all serving at least one suspension in the past year and 8.9% of the 15,000 registered licensed horse trainers cited for violations in the past five years, [53] it is clear that the penalties are not sufficient. [54]   Steve Asmussen, the trainer of the reigning horse of the year Curlin, was recently suspended in June for having one of his horses test positive for an anesthetic. [55]   This was after he had just gotten done serving a six-month suspension for a similar violation last year. [56]  

Rick Dutrow Jr., trainer of 2008 Kentucky Derby Winner Big Brown, was recently suspended for 15 days for having a horse test positive for clenbuterol, a drug with steroidal properties, within 72 hours of the race. [57]   Even more fascinating is that Dutrow has been suspended at least once every year since 2000, showing a blatant disregard for these regulations. [58]   Major critics also acknowledge that when these prominent trainers are charged with such violations, they often run their horses in the name of an assistant, while supervising their operations by telephone. [59]   This has caused widespread distrust of many horse trainers and has clearly impacted the sport. [60]   These futile attempts at penalizing the trainers will continue to entice them to further experiment with these drugs.

C. Track surfaces

Although studies are in their early stages, the recent advent of synthetic tracks has afforded the industry with a surface that appears to be safer for the horses. [61]   A most recent study has shown that there are about 1.47 deaths per 1000 starts on synthetic surface as opposed to 2.07/1000 on dirt tracks. [62]   Considering the amount of horse racing that occurs in the country, this suggests that the synthetic tracks may be safer in the long run.   These tracks have been used for years in Europe and have recently been required by the California Horse Racing Board for all of the major tracks in that state. [63]   The reports from these tracks have seen a significant drop in the number of fatalities, urging other tracks to look into making the switch from the conventional dirt tracks. [64]  

Proponents of the dirt surface have been resistant to this change.    Many attribute the resistance towards synthetic surfaces to the fact that the hard dirt tracks promote speed. [65]   Trying to convince leaders of an industry already in decline [66] to switch to a surface that may make the horses slower is an obvious challenge.   Others argue that because these surfaces may eliminate biases that give advantages to horses with certain post positions or running styles, the tracks should not be implemented. [67]   Appreciating the importance of maintaining an exciting sport, the industry cannot resist or make excuses for changes that would make the horses undoubtedly safer.   With the industry’s current organization the chance of any kind of reform can be refuted at the state’s desire, even if there is a proven safer surface for racing.      

D. Breeding

A main problem of the horse racing industry is the breeding process.   Many critics attribute faulty breeding as the central element of why horses today are making fewer starts and are more fragile than ever. [68]   In 1960 the average US racehorse made 11.3 starts in one year; today that average has plummeted to 6.3. [69]   There are a few reasons why this has occurred.   First, breeders today are focused on creating the fastest horses, putting durability aside to find the most superior racer. [70] Gone are the days of Iron Horse, the 1941 Triple Crown champion who made 60 starts in his career, or the races of Seattle Slew against Affirmed, the one and likely only time horse racing witnessed two Triple Crown winners in the same race. [71]   Now, due to the lack of durability, horses generally run for about a year or two and then are rushed to the breeding farms. [72]  

Concerns have also been raised about the offspring of those horses that have been given illegal medications.   Arthur Hancock, a prominent farm owner that has produced three Kentucky Derby winners explained, “It is a vicious cycle, chemical horses produce chemical babies.” [73]   While the affect of these drugs on the horses themselves is not certain, there is no telling what this continued drug abuse will do to their offspring.   What is clear is that the breed has become both softer and weaker, illustrating the need for dramatic reform. [74]   Since these horses are rushed to the breeding shed after only a few races, their genetic infirmities, which may not have yet been discovered because their short racing career, are passed to their progeny. [75]   No longer do the horses have to prove their durability and are rather rushed to the breeding farms as soon as the market would call for it. [76]

  Breeders have become so reliant on horses that have performed well in races that overbreeding of the same bloodlines has ensued. [77]   All 20 horses in this year’s Kentucky Derby are decedents of Native Dancer, [78] a massive thoroughbred who raced a record 81 times and won 34 stakes races. [79]   While his bloodlines have produced many thoroughbreds that have won many Triple Crown events, his progeny has been mated so many times that some are concerned that the gene pool has shrunk. [80]   As the mating continues, one trait of this horse has become more pronounced.   Because of his violent running style and heavily muscled legs, Native Dancer and many of his decedents have had trouble with their feet, like Barbaro, a great-great-great-grandson. [81]

E. Stud fees

The astronomical prices for these successful studs have also greatly impacted the sport.   2008 Kentucky Derby Winner Big Brown, who retired this year, was recently syndicated to stand at stud for $50 million. [82]   With this kind of money out there for their horses, breeders and trainers are more inclined to race the horse only a few times, in hopes of impressing the crowd to increase the stud value. [83]   Big Brown came from relative obscurity to dominate both the Kentucky Derby and the Preakness of this year, which made him a highly sought after stud. [84] This has created a shift in the industry of valuing the stud fees over an extended racing career, making it difficult for fans to identify with the horses, destroying the chance of rivalries in the sport. [85]   It has also led some trainers to push their horse out on the racetracks before they are physically capable, as many believe that some two-year-olds are not able to handle the rigors of racing. [86]

The obsession with profits for stud fees has transformed the industry.   Horse owners today are investing nearly $4.3 billion a year for a chance to compete in races that contain only $1.1 billion in purse money. [87] The risk of injury to these horses, has also taken many great horses out of the sport at a young age, as trainers do not want to risk their valuable investments. [88]   This has eliminated any chance of rivalries, which increases interest in all sports.   It is also likely why the industry has not seen a Triple Crown winner since 1978.   This has also affected the physical attributes of the modern thoroughbreds.   Dr. Larry Bramlage, an equine surgeon, in illustrating his concern for the shift in focus to speed rather than durability, stated, “you used to see a taller thoroughbred, narrow chested and bit knock-kneed, who could run forever but not as fast.”    This shows that this is not only affecting the industry, but is also having an impact on the welfare of the horses themselves.  

F. Industry decline

These problems are not only a major threat to the well being of the horses, but they have also led to the overall revenue decline in the sport.   A major component is the vast array of racetracks that exist in the country.   As Randy Moss, an ESPN horse racing analyst, noted in his testimony:

Thoroughbred racing is cannibalizing itself.   This Saturday alone racing will be conducted at Belmont Park on Long Island: at Charles Town and Mountaineer Park, both in West Virginia; at Delaware Park; at Churchill Downs in nearby Virginia; at Laurel Park just across the border in Maryland; at Finger Lakes in upstate New York; at Monmouth Park in New Jersey; at Penn National, Philadelphia Park and Presque Isle Downs, all in Pennsylvania; and at Suffolk Downs in Massachusetts. And these are only the racetracks in the Northeast region of the country. [89]

Having so many racetracks has reduced the average field size of races, diluting the competition and frustrating horseplayers whose betting keeps the sport alive. [90]   With the plethora of tracks, states are forced to compete for these horses, leading them to ease up on their medical restrictions to entice owners to race the horses at their tracks. [91]  

The increase in race fatalities has also affected the industry’s popularity.   Since 2003, there have been a reported 5,000 horse deaths. [92]   This only considers those deaths that the tracks report, as many injuries go unreported because of the some racing commissions’ lax record keeping. [93]   Though most of these injuries are not as publicized as widely as Barbaro or Eight Belles’, frequent visitors to a racetrack have likely seen their fair share of horse casualties.   Witnessing an injury of this magnitude sheds light on the fact that more can be done for the safety of these horses.

Instead of trying to improve the quality of the sport, the state racing commissions have tried to find other ways to attract revenue.   Many racetracks have turned to slot machines turning many of these facilities into “racinos”, implementing popular gambling games into the race industry. [94]    While these changes will help the overall purses for races, it has turned the racetrack into an entertainment center with many people not even laying eyes on a horse when visiting. [95]   By allowing slot machines into their racetracks, these states have in essence turned what was once one of the most popular sports in the country into a casino sideshow. [96]

States without slot machines have now found themselves at a major disadvantage, unable to compete with neighboring states that subsidized industry by slots money. [97]   These states with slot machines are also able to offer cash bonuses for victorious horses bred in-state. This has caused many horsemen to move their operations to those states that offer these rewards, to the peril of those states without casinos. [98]   This puts pressure on state legislators to allow slot machines in their racetrack to enable their state’s racing commission to be competitive in the industry.   Many states become forced to follow suit, like Maryland, whose voters just approved a bill to allow slot machines in their state where the industry has struggled. [99]   

The state racing commissions have focused on new ways to attract customers while turning a blind eye to the declining product that is put on the track.   Stricter and uniform regulations of the industry would be the first step in bringing the industry back to its glory days.   With better competition and longer race careers, the sport will be able to strengthen its fan base and create the kind of interest in the sport that has been drastically in decline.   The state racing commissions of course need to be concerned with their revenues, but the well-being of these horses needs to be a top priority as well.

III. Why Congress is needed

Even with what Alexander Waldrop, the president of the NTRA calls “great strides,” [100] the industry will continue to have its problems.   The NTRA recently created the Safety and Integrity Alliance, comprised of a conglomerate of breeders, trainers, track operators and owners, to implement a track certification program to encourage racetracks to follow safety guidelines. [101]   However, the problem with this is the same problem with all attempts at reform, the guidelines are not mandatory.   While 56 racetracks have volunteered for the program, there are more than 100 racetracks in the US, and those that do not wish to participate are not required to. [102]   This is the prime reason why the NTRA will not be able to police its own industry.   There is a drastic need for a governing body that will mandate rather than recommend safety reforms, holding those racetracks accountable if they do not adhere. Like the British Horseracing Authority, the governing body of British horseracing that sets mandatory standards of both racing and its racetracks, this industry needs a required set of rules from a national governing body. [103]  

While the progress the industry has made in regards to steroids is commendable, the fact that these kinds of reforms were not implemented until after the highly publicized breakdowns and the Congressional Hearing illustrates the difficulties facing the current industry.   The industry cannot wait for public scrutiny to mandate when the state commissions should take action.   Instead of waiting for each state to individually ban the use of steroids, a national authority would have been able to provide faster and more effective reform, which would make it easier to respond to issues that may arise in the future.

IV. What Congress can do

With most agreeing that a national governing body is necessary for the sport, some disagree over how this can be done.   Though some inside the industry would favor an establishment led by the industry, [104] the troubles that continue need immediate improvements that the industry may be unable to provide.   It is clear that changes are needed in the sport and if Congress chose to regulate, they would certainly have that power.

In 1978 Congress passed the Interstate Horseracing Act. [105]   This Act allows states to take responsibility to determine what forms of gambling may take place within this state. [106]   The act permitted racetracks to televise their races to off-track locations for wagering which was previously prohibited. [107]   This act allowed horsemen to place wagers in one state on races that occurred in other states. [108]   Wagers of this kind became the lifeblood of the sport as $13 billion of the $14.7 billion wagered on horseracing last year was from off-track sites. [109]

Similar to what it attempted to do in 2007, Congress could amend the Act and require as a condition to the consent of off-track wagering, states would have to follow certain federally mandated guidelines. [110]   As part of a proposed amendment, Congress attempted to require host-racing commissions to offer insurance coverage for professional jockeys. [111]   Congress also proposed an across the board prohibition on steroids as well.   This shows that Congress has contemplated using their Commerce Power to regulate the industry in the past and should use this power to establish a centralized racing commission.   With the inherent lack of authority of the NTRA, Congress must step in where the industry has fallen short.

Conclusion

As is unique with most things involving animals, the horses are not able to assert their rights or monitor the types of medications they receive.   They are under the complete control of their breeders and trainers for better or for worse.   These horses are the ones who suffer the consequences of the greed and inequity that has stricken this sport.    They are at the mercy of their trainers and it is up to others to keep the safety of these animals a top priority.

Even as the NTRA attempts to reform, the fact that it has waited this long is inexcusable.   Had Barbaro or Eight Belles not been injured on national television or had Congress not have held their hearing, the NTRA would have likely continued along the same path without much reform.   This sport can no longer wait for the next horrific injury to occur for action to be taken about the safety of these animals.   The NTRA and the state racing commissions need to be accountable for what happens to these horses, as they are in the best position to ensure that the horses are being cared for.   It is unfortunate that we had to wait for these two catastrophic injuries to get a closer look at the ills that threaten the horse racing industry.  

With more state racing commissions becoming so reliant on gambling, amending the Interstate Horseracing Act would provide Congress with the necessary power to establish a national horse racing commission.   Congress could create a governing body that sets forth mandatory regulations throughout the industry.   The current industry’s regulation of the steroids problem is a prime example of how onerous it has become to make improvements in the sport.   A national commission would supersede the individual state racing commissions in an effort to produce a uniform set of rules for the industry as a whole.   This would enable the industry to address its issues more efficiently and ensure that these thoroughbreds are properly being cared for.