A FACTUAL ANALYSIS OF THE JUSTIFY SCOPOLAMINE POSTIVE IN THE SANTA ANITA DERBY

The recent New York Times story by Joe Drape pertaining to 2018 Triple Crown winner Justify testing positive for scopolamine in the Santa Anita Derby drew international attention to the incident…and a plethora of almost entirely negative commentary outside horse-racing circles. Most of the media accounts (starting with the New York Times article) were to varying degrees inaccurate and incomplete. A few were rush-to-judgment condemnations.*

Irrespective of sensationalized and often erroneous media accounts, reporters and commentators are just doing their jobs, albeit poorly in some cases, and are not to blame for the bad publicity horse racing is receiving. An objective analysis of the facts points elsewhere.

Facts:

Under California Horse Racing Board rules, there are four levels of drug violations, ranging from A to D, with level A designating the most serious drug offenses. Scopolamine is a level C violation, in the same category as aspirin and Tylenol. The penalty specified for a trainer with a first-offense C violation is a “Minimum fine of $500 to a maximum fine of $1,000 absent mitigating circumstances.”

A CHRB rule states in part: “In reaching a decision on a penalty for a violation of Business and Professions Code section 19581, the Board, the board of stewards, the hearing officer or the administrative law judge shall consider the penalties set forth in subsections…of this Rule and any aggravating and mitigating circumstances. Deviation from these penalties is appropriate where the facts of the particular case warrant such a deviation, for example: there may be mitigating circumstances for which a lesser or no penalty is appropriate, and aggravating factors for which a greater penalty is appropriate.” One of the mitigating factors listed is “The probability of environmental exposure…” (For instance, in 2016, the CHRB issued an alert over straw contaminated with Jimson weed at Del Mar.)

Justify was one of seven horses from five separate barns that tested positive for scopolamine. This strongly suggests contamination as the origin rather than a plot to cheat.

A number of leading equine veterinarians, with impeccable credentials, are on record as stating that scopolamine is not a performance enhancer. To the contrary, it can be poisonous.

The point system to determine which horses qualify for the Kentucky Derby is not a rule or regulation, but rather is simply a selection methodology that Churchill Downs can modify by fiat. Track management can change or abandon the point system and expand or contract the field size if it so desires because Churchill Downs owns the Kentucky Derby.

Analysis

The CHRB should have announced the Justify scopolamine positive immediately after the lab result came back and explained that since seven horses from five barns tested positive, feed contamination was the leading suspect. In other words, that there was a mitigating circumstance. And that a scopolamine positive is not automatically a disqualifying infraction.

Then Churchill Downs and the Kentucky Horse Racing Commission would have been able to articulate a rationale for permitting Justify to run in the Kentucky Derby, perhaps as the 21st entry. Since the CHRB was still investigating at the time and had made no final decision, Churchill Downs and the Kentucky Horse Racing Commission would have been in no legal or ethical position to bar Justify’s owners from entering their colt in the Kentucky Derby before their due process with the CHRB was completed.

Because the CHRB did not publicize the Justify positive in a timely manner, the omission understandably gives the appearance of a cover up and favoritism toward trainer Bob Baffert. Lending credence is that members of the CHRB are prominent California horse-racing insiders who may not be impartial enforcers of rules and regulations, especially when it comes to their friends, acquaintances, and business associates.

The Justify positive for scopolamine would have elicited extensive media coverage no matter when it became public, but leaked information to the New York Times nearly a year and half after the 2018 Santa Anita Derby yields the inescapable look of a coverup at the CHRB. The CHRB’s bungling of the Justify case is indicative of what is likely to happen when regulators are cozy with the people being regulated.

And American horse racing is paying the price.

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* To illustrate, a sports writer, formerly with the Louisville Courier-Journal and presently with a national online publication, concluded that the Times’ revelation is the “beginning of the end of horse racing.” This deduction, apparently rendered with confidence and surety, is contrary to a vast wealth of contemporary evidence from Major League Baseball, cycling, track and field, the NFL, the NBA, and other sports, which remain popular in spite of repeatedly having far worse substance-abuse (and domestic-abuse) issues surface. Gymnastics still draws fan interest notwithstanding ongoing publicity from a despicable scandal, arguably the most egregious in sports history, that makes illicit medication of human and equine athletes look like a minor traffic violation.

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