The recent doping scandal involving the trainer Mahmood Al-Zarooni has rocked racing. Mr Al-Zarooni’s position in defence of his actions (that he believed steroid administration was permissible whilst the horses were not racing) is startling in its naivety (if true). This is particularly the case when one views the regulatory code prescribed by the British Horseracing Authority (‘BHA’). Three things stand out.
Firstly, under the BHA’s rules of racing a Trainer is under a duty that to ensure that all treatments and medication administered to a horse under his care or control are given in “the interests of its best health and welfare” (rule 28.1 Trainer Manual (“TM”)). Given the known side effects of steroid usage it is difficult to see how any trainer could feel satisfied that administration of steroids did not contravene this duty.
Secondly, the Trainer is under a duty to keep medication records. These records extend to any ‘Treatment’ administered to a horse under the care or control of the Trainer (rule 13.1 TM). ‘Treatment’ includes any treatment or medication containing a ‘Prohibited Substance’ (rule 13.4 TM) which includes an anabolic steroid. If Mr Al-Zarooni’s position that he thought steroid administration whilst the horses were in training was genuine then one would expect to see this reflected in the horses’ medication records. But this was not the case. Specifically, the BHA observed that: “[Mr Al-Zarooni] did not have a credible explanation as to why he had not discussed the matter with the stable’s veterinary surgeons or entered a record of the administration of the drugs in the stable’s medication books.”
Thirdly, the rules of racing make it crystal clear that a finding of a Prohibited Substance is a breach of the rules when a horse is at training premises as well as on a racecourse. The rules detail three separate provisions addressing the implications of a ‘positive test’ in three different locations: (a) a racecourse (rule 53), (b) a stalls test (rule 54), and (c) training premises (rule 55). Rule 55.2 relating to testing at training premises provides that “Where a Sample tests positive for any Prohibited Substance that is listed in Paragraph 3 of Schedule 6 [which includes an anabolic steroid], the [BHA]…will impose a financial penalty on the Trainer, and…may withdraw or suspend the Trainer’s licence”. Taking Mr Al-Zarooni’s case at its highest, he must simply have ‘overlooked’ this provision.
Ultimately, the BHA refused to accept Mr Al-Zarooni’s assertion that he did not know that such administration was not permitted in the UK, describing it as “simply not truthful”. Given the position as set out above, this is an unsurprising conclusion for the BHA to have reached.
Even if the BHA had accepted Mr Al-Zarooni’s explanation at face value, of course, this would not have availed him. When a Prohibited Substance is found in a horse under a Trainer’s care or control liability is described as ‘strict’, even if the person who administers the substance is in no way connected with the Trainer (rule 50 TM). It is perhaps relevant to note, however, that the rules do give the BHA scope for not taking any disciplinary action against a Trainer when they are not at fault in any way. The bar is set very highly indeed when the substance in question is an anabolic steroid; the Trainer must establish that (a) the substance was administered whilst the horse was not under the Trainer’s care or control, and (b) the Trainer had no reason to believe that the Sample from the horse might test positive (rule 55.4.1 TM).