The need for the global harmonization of anti-doping policies in horseracing

Published 10 July 2013 By: Hamid Khanbhai, Nick Broomfield

The media was quick to dub the Al-Zarooni decision British horseracing’s Lance Armstrong moment; it was the moment that doping in racing was brought to the attention of the world at large. The decision has proved to be the catalyst for widespread debate concerning both the need for reform and whether it would be possible for horseracing to adopt an approach similar to that taken by the Word Anti-Doping Agency (“WADA”).

This article sets out in brief terms the background facts to the Al-Zarooni case and summarises the decision of the British Horseracing Authority (“BHA”) whilst then moving  to consider whether Al-Zarooni highlights a need for wider reform within horseracing.  

 

The decision in Al-Zarooni

Established in 1992, Godolphin is the highly successful global enterprise of Sheikh Mohammed bin Rashid al-Maktoum, the monarch of Dubai. It boasts some 5,000 horses, stabled in 12 countries, that  compete in races across the world and are worth billions. Since its formation in 1992 Godolphin has won in excess of 200 top-level Group One races (the highest level of Thoroughbred and Standardbred races) in 12 different countries.

The trainer at the centre of the case, Mahmood Al-Zarooni, was appointed as Sheikh Mohammed’s trainer at Moulton Paddocks (Godolphin’s leading stables in Newmarket) in March 2010.  Al-Zarooni won the St Leger in his first season, which is the oldest of Britain’s five Classics. Blue Bunting, trained by Al-Zarooni, went on to win the Irish Oaks, Ireland’s equivalent of the Epsom Oaks, in 2011. On 9 April 2013, the BHA took samples from horses trained by Al-Zarooni at Moulton Paddocks and upon analysis the Horseracing Forensic Laboratory found traces of prohibited anabolic steroids stanozolol and ethylestranol in 15 of the 100 horses at Moulton Paddocks   

Mahmood Al-Zarooni admitted that the prohibited substances had been administered to the Goldophin horses in breach of the Rules of Racing published by the UK’s regulatory body, the BHA. A BHA tribunal empanelled at the end of April heard charges against Al-Zarooni of breaching rules in relation to prohibited substances, the keeping of medication records, and conduct prejudicial to racing.

The disciplinary panel of the BHA did not mince its words in its findings. The panel found that Al-Zarooni was being “untruthful” in giving the excuse that he was unaware that they were banned substances, and that he “sought to confer an unfair advantage on his horses by the underhand administration of illegal medication”. The panel concluded that it was “firmly of the view that this was not an accidental or inadvertent misunderstanding of the rules - this was a deliberate flouting of the governance framework of British racing by one of the most high-profile flat trainers working in the racing industry”.

The BHA disciplinary panel gave Al-Zarooni a lengthy eight-year ban. All of the Godolphin horses that tested positive have been prevented from racing for 6 months, including Encke, last year’s St Leger winner, and Certify, which before the ban had been the favourite for the 1,000 Guineas.

On 25 April 2013 a statement read by Godolphin’s racing manager on behalf of Al-Zarooni, apologised to Sheikh Mohammed, those involved with Godolphin and the horseracing public for his “catastrophic error” and accepted that it had been his responsibility to be “aware of the rules regarding prohibited substances in Britain.” Although Al-Zarooni initially indicated that he would appeal the length of his ban, on 29 May 2013the BHA tweeted that Al-Zarooni had withdrawn his appeal regarding the eight year disqualification.  

Sheikh Mohammed issued a statement on Godolphin’s official website, stating that he was “appalled and angered” at the deliberate violation of the rules of racing for which there could be no excuse and, following the decision, issued a decree outlawing the import, sale, purchase and use of steroids in all equine sports in the United Arab Emirates (UAE). After the “unfortunate recent event,” the Sheikh decreed that the use of anabolic steroids on sport horses would be made a criminal offence in Dubai with immediate effect, thereby introducing stricter rules than those in place in Britain.

 

Al-Zarooni: an indication of the need for change?

Aside from making headlines because of the identity of Godolphin’s owner and the length of the ban imposed by thedisciplinary panel, the decision in Al-Zarooni raised awareness of a more significant issue: the lack of a global consensus within the horseracing community as to the stance that should be taken on doping. Inevitably, this has drawn comparisons with the approach adopted by WADA.

 

The World Anti-Doping Agency

Before WADA was formed in 1999, the anti-doping movement was, in relative terms, largely ineffective. On the whole it fell to domestic governing and sporting bodies to shoulder the burden of policing doping in and out of competition. One problem was that many sporting bodies simply lacked the resources to perform the tasks adequately whilst others have, at various times, been accused of actively encouraging the use of banned substances to increase the performance of their athletes. Other problems included sports turning a blind eye to doping so as to avoid the embarrassment and PR consequences of a failed drugs test and a general lack of regulatory clarity. The fact that anti-doping research, regulation, testing, and discipline were entirely devolved to the various sports organizations in their own respective spheres of influence meant that there was inevitable inconsistency in definitions, policies and sanctions as a result of the plurality of ‘jurisdictions.’

WADA was established as an international independent agency with “a vision of a world where all athletes compete in a doping-free sports environment” in response to the 1998 Tour de France scandal. WADA started as an initiative of the International Olympic Committee, but now also receives funding from governments around the world. WADA is responsible for the World Anti-Doping Code (“WADC”), which is a document that harmonizes anti-doping policies globally and has the right to appeal disciplinary decisions of domestic governing bodies and/or sporting regulatory authorities to the Court of Arbitration for Sport (“CAS”) in circumstances where it does not consider that the letter or spirit of the WADC has been implemented.

Global harmonization of anti-doping rules that are published by WADA, as an independently funded body with international support and access to a central pool of funds and resources, has overcome many of the problems experienced in the pre-WADA era.  Although testing and discipline remain the responsibility of individual sporting or domestic regulatory bodies, WADA’s right of appeal to CAS ensures that the WADC is properly implemented across the whole spectrum of subscribing sports.

Arguably one of the greatest achievements of the alignment of anti-doping legislation is the promotion of clarity for trainers and athletes. A competing athlete anywhere in the world knows what is expected of them and can access information relating to prohibited substances. Not all agree. Critics of the WADC and its manner of implementation by CAS argue that the ever expanding body of case law that now dictates the interpretation of the WADC has done nothing but obscure the Code’s purpose. However, this should not have come as a surprise, as with any code it was inevitable that this would occur to a greater or lesser extent – wherever there are rules and a forum in which those rules can be challenged those rules will be the subject of debate concerning their interpretation and implementation.    

 

Anti-doping in horseracing

The global community of horseracing resembles the state of athletics pre-WADA.  With no global harmonization of the rules on doping in horseracing, many of the pre-WADA problems, addressed by the introduction of the WADC, are being experienced.  

Horseracing has an international body in the form of the International Federation of Horseracing Authorities (“IFHA”). The IFHA publishes an agreement to which national horseracing federations around the world (including the BHA) are signatories and ensures harmonisation on a number of matters, including breeding, racing and betting – but doping is not one of them. As a result, there is a splintered approach to out of competition testing, with different governing bodies in different jurisdictions adopting different approaches to the use of steroids in training:

Steroids: Total Ban: The BHA has a zero-tolerance policy on the use in training or in competition of anabolic steroids. It also has a blanket ban on the use of peptide hormonesand beta-2 adrenoceptor stimulants not prescribed by a veterinary surgeon. Similarly to WADA, the BHA hastaken the position that there is little point banning certain types of substances in competition so as to protect the essence of “fair play” when a horse or athlete who is clean on race day has had the long term benefit of a substance-enhanced training regime.  Since the decree of Sheikh Mohammed, racing in Dubai is now the most rigorously policed.  The import, sale, purchase and use of steroids in all equine sports in the United Arab Emirates is now outlawed, and the use of all of anabolic steroids on sport horses is a criminal offence.

Steroids: Allowed in Training: This is in contrast to the racing authorities in some countries, including Australia and USA (and formerly the UAE), which allow the use of anabolic steroids in training provided that they are not present in the horse on race day.

Other Substances: Allowed in Training: Certain substances other than steroids are banned by the BHA in competition but are permitted in training. These categories of drugs include those that are widely used in equine welfare. Accordingly, an anti-coagulant like Lasix can be administered during training but must not be in the horse’s system on the day of a race. Published withdrawal periods for such drugs allow trainers to calculate when they can administer relevant treatments to a given horse with the expectation that the substance will no longer be present in the horse on the day of a race.

Variation in Published Detail: The BHA does not publish an exhaustive list of banned substances, whether banned in competition, training or both. However, it does provide categories of prohibited substance in Schedule 6 of its Trainer Manual. Some of those categories are necessarily widely drafted, such as the prohibition (in competition) of any substance capable at any time of causing an action and/or effect within certain of the horse’s body systems, including the nervous, cardiovascular, respiratory, digestive, urinary, reproductive, musculoskeletal, blood, and endocrine systems. By contrast, other jurisdictions appear to be more specific – for example, see AR.178B(2) of the Australian Rules of Racing (as amended in March 2013) published by the Australian Racing Board.

It is not hard to see that the range of anti-doping regimes and rules have the potential to cause problems for trainers. Whilst the WADA rules are universal, owners and trainers of horses face uncertainty and a lack of clarity, given that some substances might be banned both in competition and training in one jurisdiction, but only in competition in another, and given that the same prize-winning horse could be entered in competitions in different countries over the course of a few months.

 

A case for global reform?

Although global reform of the international rules of racing along the lines of the WADC could only be seen as a positive and clarifyingmove for the racing world, such reform appears unlikely. Whilst the BHA has adopted a no-nonsense approach to steroids, out-of-competition doping is legal in other jurisdictions and the decision in Al-Zarooni is therefore unlikely to have any significant global impact beyond the decree of Sheikh Mohammed referred to above.  

There still remains a splintered approach which would need repair before any international code could be drawn up.  Whilst sports such as football have international governing bodies (i.e. FIFA) which can wield the legislative pen to impose universal rules on the sport as a whole, the absence of a single governing body in horseracing appears, at least at present, to be a huge hurdle for reform. Whilst any reform of doping rules is likely to be limited (for now) to domestic regulators such as the BHA, it is conceivable that international coordination on doping could be achieved through the IFHA.  

An international approach would still need an international code and provisions for its enforcement. The financial implications of establishing and enforcing an equine version of the WADC raises practical concerns. Although some of the wealthiest men and women on Earth are involved in racing, the regulatory bodies have historically suffered from underfunding and have been limited by their lack of resources. Those involved in the regulation of horseracing will freely admit that the finances and resources required to implement and enforce out of competition testing on the scale required is simply impossible in the current regulatory framework. By way of example only, there are around 20,000 race horses in Britain and official figures state that between 600 and 700 tests were carried out last year as part of the “testing in training” programme (compared to 7,182 of 90,174 runners being tested on raceday) – this amounts to (approximately) a 1 in 28 chance of a horse being tested in training.

However, it may not be necessary to reinvent the wheel. The International Federation of Sleddog Sports signed on to comply with the World Anti-Doping Code in 2003 and was required to establish and implement anti-doping rules and procedures for its athletes – human and canine. The IFSS developed a body of rules that was approved by WADA in 2008 and have since been implemented. In the authors’ view, each domestic governing body, lead or directed by the IFHA, could easily Register to WADA, thereby providing additional protection within an existing framework without the need to establish a new regime.

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Hamid Khanbhai

Hamid Khanbhai

+44 20 7822 2075

Hamid is a barrister at 4 New Square. He is developing a practice in all of Chambers' areas of work, including sports law. He assisted Graham Chapman as a pupil in a strike out / summary judgment application in the context of a claim in negligence brought by a former Premier League footballer against his insurance advisers.

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Nick Broomfield

Nick Broomfield

Nick became a tenant of 4 New Square in October 2011 and is developing a broad civil and commercial practice across all areas of Chambers’ work. Nick completed his twelve month pupillage with Chambers under the tutelage of Richard Liddell, Jonathan Hough, Charles Phipps and Mark Cannon QC. During pupillage Nick attended court, conferences, mediations and settlement negotiations with his supervisors and drafted research notes, opinions and pleadings.

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