Lawyer Darrell Vienna Refutes HISA Misinformation Claim Regarding Wesley Ward’s Open Letter

Charles Scheeler, chair of the Horseracing Integrity & Safety Authority board, in a letter to the editor submitted to industry news outlets, contends that misinformation has circulated about the Horseracing Integrity and Safety Act (also known as HISA). Scheeler said that includes an open letter to the industry by trainers Wesley Ward and Larry Rivelli distributed under the headline “We’ll push for positive change. Flawed HISA is not answer.”

Scheeler’s contentions mirror several made by HISA CEO Lisa Lazarus in a text to Ward and subsequent phone call on Monday with the trainer, in which his lawyer, former trainer and equine attorney Darrell Vienna, participated. Vienna went in with no preconceived ideas and had no prior contact with the National HBPA on this subject. He was not involved in writing the open letter.

To set the record straight, here is the letter that Vienna subsequently sent to Lazarus. It is being published with the consent of Vienna and Ward. While the letter is being distributed by the National HBPA, the horsemen’s association did not communicate with Vienna or Ward in advance of the conversation with Lazarus and was not involved in Vienna’s letter.

(Also, some news outlets have referred to Ward’s letter as a National HBPA letter. As stated when the original letter went out, Ward approached the National HBPA for assistance in creating and distributing an editorial. The trainers controlled the content.)

PDF of Darrell Vienna’s letter, and as text below:

Dear Ms. Lazarus:

I enjoyed and appreciated speaking with you yesterday regarding your views on HISA and comments on the Ward/Rivelli Open Letter (the “Letter”). Although we discussed a number of these issues during yesterday’s Zoom meeting, I wanted to follow up with a written response to the contents of the Letter and your concern that “there is a lot of misinformation” in the Letter.

Wesley Ward forwarded to me the text message in which you provided examples of what you believed to be misinformation contained in the Letter. In that message, you addressed the impact of HISA’s approach to the following:

• Smaller tracks and racing jurisdictions
• Distinction between doping and therapeutic substances
• Laboratory standardization and screening limits
• Environmental Contamination (Atypical Findings Policy)
• Input from Horsemen
• Crop Rule

1. Smaller Tracks and Racing Jurisdictions

Although we discussed most of these topics yesterday, I believe the following response accurately memorializes our conversation:

HISA’s (Lazarus) Position: HISA Rules specifically take account of smaller tracks and jurisdictions by requiring tracks with higher purses to pay more than those with lower purses.

Open Letter: Concern was expressed about the impact of HISA fees on smaller tracks and ultimately on the need to preserve the economic viability of the smaller track and training operations.

Comment: Many horsemen believe that the projected HISA assessment formula has a disproportionate impact on the smaller racing jurisdictions. For instance, the impact of a $500 start fee at Del Mar has far less impact on racing stable economics than a $200 start fee at Arizona Downs.

There is an apparent and obvious inequity in some of the HISA assessments. For example, Charles Town’s annual purse money ($35,000,000) and Keeneland’s annual purse money ($32,000,000) are similar; however, Keeneland’s HISA Assessment is half of Charles Town’s HISA assessment.

2. Doping/Therapeutic Substances

HISA’s (Lazarus) Position: HISA’s drug and medication rules divide doping therapeutic medications into two completely separate regimes with the intent to penalize those who cheat from accidental medication overages.

Open Letter: The sentiment of horsemen expressed in the Letter is for stiff penalties for those who violate the rules. Procedures must provide due process.

Comment: Horsemen do not regard this as misinformation. The HISA approach is not breaking new ground as claimed but is simply adopting the classification of drug substances previously developed and adopted by Association of Racing Commissioners International.

HISA rules provide for widespread provisional suspensions (summary suspensions) prior to a hearing on the merits. Horsemen believe that summary suspension should apply only when there are the instances of obvious egregious misconduct and only after expeditious due process safeguards are in place.

3. Laboratory Standardization and Screening Limits

HISA’s (Lazarus) Position: Laboratory harmonization will result in testing for the same substances at the same levels. Screening limits will be set to only report positives that have a therapeutic effect on horses. There will be no positives resulting from picogram or minute levels.

Open Letter: Findings at picogram levels of many substances should be evaluated for performance enhancement based upon reasonable science-based screening levels.

Comment: Laboratory standardization will not prevent “gotcha chemistry” unless the standardized levels of laboratory thresholds are based upon validated scientific studies. In practice, oftentimes there is no validated scientific basis for determining an appropriate laboratory threshold. Levels developed without a valid scientific basis, however standardized, could result in “gotcha chemistry.”

HISA’s claim that findings at picogram levels will not result in positives is not supported by HISA rules. There is no language in HISA rules that prohibits enforcement actions for findings at picogram levels. Some laboratory screening levels are predicated on reproducible detection levels or arbitrarily adopted limits. Laboratory screening levels are not threshold levels. Threshold levels apply to the maximum level permitted for an otherwise prohibited or controlled substance.

4. Environmental Contamination – Atypical Finding Policy

HISA’s (Lazarus) Position: HISA’s contamination policy is the most trainer friendly contamination policy ever in racing. Positive tests resulting from unintentional environmental contamination will not be charged. Nor will the horse be disqualified.

HISA’s contamination policy is called the Atypical Findings Policy.

Open Letter: Drug and medication policies should reflect the world in which we live, including the reality of environmental contamination of prohibited substances in minute levels that have no impact on a horse’s performance.

Comment: HISA’s Atypical Findings Policy provides for dismissal prior to the filing of a charge regarding a highly limited number of substances where there is a deviation from HISA standards or protocol. The vast majority of prohibited substances are not subject to the Atypical Findings Policy. The Policy only applies to initial findings of HISA specified substances, endogenous substances, ractopamine, zilpaterol, and substances not listed on the Prohibited Substances list. Contrary to HISA’s assertion of trainer friendliness, HISA’s policy is among the most trainer unfriendly contamination policies in horseracing because it excludes a vast number of substances from the Atypical Findings Policy.

Additionally, the failure to disqualify horses carrying prohibited substances with potential performance-enhancing properties (e.g., ractopamine and zilpaterol) would be unfair to other race participants and conflict with the statutory framework of many states.

5. Horsemen’s Input

HISA’s (Lazarus) Position: All horsemen’s groups have received drafts of all rules and had the opportunity to comment on them. All feedback was considered and incorporated into HISA rules where the committee agreed with them. It is not true to say the horsemen weren’t consulted.

Open Letter: The horsemen insist upon transparency and representation in the development and execution of rules. Racing will benefit from policies that allow for input from horsemen and veterinarians in the trenches.

Comment: The horsemen have not said they were not consulted. The belief is that their ideas were not given proper weight or appropriate consideration. The term “horsemen” has been loosely construed. Horsemen are the individuals who feed, groom, exercise, train, and ride horses. Horsemen are the people who will suffer the consequences of HISA actions. Having the wherewithal to purchase a race horse constitutes only a portion of those horsemen having to deal with HISA rules. The concerns expressed in the Letter have been supported by over a thousand horsemen because they believe that many of the entities, groups, and associations whose thoughts and sentiments have resulted in HISA rules are not representative of a large faction of horsemen on backstretches across this nation. Trainers, their assistants and staff will bear the consequences of the rules; and, thus they believe they should be intimately involved in the creation of the rules and their input given proper weight.

6. Crop Rule

HISA’s Position: HISA is working with the Jockeys’ Guild with regard to possible revisions of the crop rule.

Open Letter: Horsemen and jockeys must have more say in developing safety rules, including crop regulations.

Comment: Horsemen look forward to working with interested parties in developing appropriate crop rules. The fact that HISA has already engaged in scores of crop violation rulings is an indication that changes must be made. The horsemen are ready and willing to address sensible protocols for the use of crops in racing.

In sum, therefore, the Letter was not, in my opinion, based upon, nor did it promote or include, any misinformation.

It is my personal belief that horsemen and the principals of HISA have the best of intentions.

Uniform rules are a common goal. The achievement of that uniformity however does not require the formation of a new entity. There is an existing model for a regulatory framework that has been worked on for years — the ARCI model rules. While not perfect, they reflect years of input and study and have gone through numerous iterations. Those rules, imperfect as some believe they may be, have proven to be workable. The penalty point system is another mechanism which has recently evolved out of the industry’s wish to address medication violations nationwide.

On the other hand, HISA rules have not been so tested and do not appear superior to ARCI model rules. Rather than rewriting the book, it may be better to see those model rules adopted and enforced uniformly throughout racing jurisdictions. If there was a concerted effort toward that goal, I believe that uniform racing and medication rules would already be the law of the land.

Sincerely,

Darrell Vienna