Who’s Gonna Ride Your Wild Horses? (apologies to U2)

On 21, 22nd July & 2nd August, the British Horseracing Authority (BHA) disciplinary panel considered the case of Howard Johnson. Johnson had been a licensed horse trainer for the past 25yrs and had had some success.

The case against him fell into two main categories, permitting a horse to continue to race following a prohibited operation, and several counts of doping using anabolic steroids (because the BHA updated their rules midway through this period, some of the charges relate to the 2007 rather than 2009 rules).

 

PROHIBITED OPERATION

The first set of charges relate to a palmar neurectomy carried out to the (left) near forelimb of Striking Article, a chestnut gelding (originally worth £150,000). The operation, carried out on 8 April 2008, by Johnson’s vet (James Emson) effectively cut sensation to the horse’s lower leg (http://www.horsetalk.co.nz/lameness/tha-navicular.shtml). While there is no doubt that the operation was necessary because since January of that year, the horse had been lame from an ‘extremely severely ulcerated corn in his left fore-heel’, a neurectomy does not cure the underlying pathology, but merely masks any signs of pain, allowing the horse to carry on day-to-day activities.

Unfortunately because of the risks to both the horse and to its rider, any horse who has received this operation is automatically prohibited from riding as it will not be able to feel any pain in that leg, giving it both an unfair advantage and the potential for it to cause permanent damage to itself without it realising.

This is indeed what happened at Musselburgh on 7 February 2010 when Striking Distance pulled up lame, 5 fences from the finish. Immediate veterinary treatment at the course showed that the horse had ruptured its near-fore superficial digital flexor tendon and it was euthanized at the course. The resulting post-mortem enquiry by the BHA led to this case.

To his credit, at no time in the enquiry did Johnson seek to hide the neurectomy, admitting it straight away in a phone call, instead he pointed to his lack of awareness of the BHA rules that such an operation was prohibited. The BHA however found that ignorance of this rule was not a defence, indeed it only compounded the severity of the sentence, given the risks to both rider and horse.

While there is no published recommended penalty in Guide to Procedures and Penalties 2011, it can be seen from the BHA judgment that the panel adopted a strict liability approach. Once it had been established that Striking Distance had had an operation, and then continued to race, the offence was made out. The BHA automatically disqualified Striking Distance’s results in each of the 8 races (Rule 188 of the Orders and Rules of Racing (ORR) 2007 & Rule (C) 37 of ORR 2009 – Fitness to run).

Johnson was also charged with breaches of Rule 51(i) of ORR 2007 & Rule (C) 22 of ORR 2009, for failing to conduct his business of training racehorses with reasonable skill and care. In light of the gravity of the offences and Johnson’s reckless ignorance of the rules, the BHA suspended his trainer licence for 3yrs.

 

PROHIBITED STEROIDS

The second category of charges relate to the covert use of Laurabolin (an anabolic steroid containing Nandrolene) on a number of horses. Following a doping test on 6 December, it was discovered that one of Johnson’s horses had trace amounts of nandrolene. As these amounts were too small to constitute a positive sample, the BHA conducted an unannounced inspection of the stables on 19 January, taking 100+ blood samples.

The interesting part of the case is that although all the samples proved negative, and there were no medical records (these had been destroyed during a fire in 2009), the BHA did find evidence in Johnson’s Head Lad (Ray White)’s diary that suggested three horses (Whiskey Magic, Mintaka Pass  & Montoya’s son) had received anabolic steroid injections. This was later confirmed by records from the veterinary surgery.

The records and various testimony suggested that the injection of Laurabolin was used a booster to perk the horses up when they returned to the stables from a race, if they seemed weak or in poor condition, rather than for any clinical indication. Johnson however tried to argue that this was in the horses’ best interests, that it was acceptable to administer steroids if they were not in training, and that after receiving the injections, the horses would be rested for 28 days (coincidentally the time it would take for the steroids to be undetectable!)

The panel found that if use of a prohibited substance occurred during training, it constituted a doping offence. By comparing the dates of the injections against the training records of the horses, they held that:

  • Both Whisky Magic and Montoya’s Son were in-training
  • there was insufficient evidence however for Montaka Pass, although the panel noted concerns about the clinical justification of the injection (currently the subject of an alleged investigation by Royal College of Veterinary Surgeons)

Because the offences had come to light via non-analytical findings rather than positive sample collections, Rule 239 of ORR 2007 and Rule (C)55 did not apply and the panel instead charged Johnson with breaching Rule 220(iii) ORR 2007, Rule (C) 50.3 (strict liability) & Rule (A) 30 of ORR 2009 (prejudicial to integrity etc). Ultimately the panel applied a 1yr disqualification to run consecutively with the other charges, resulting in a combined penalty of 4yrs, starting on 19 August 2011. During this time, he is forbidden to enter any licensed premises under the control of any racing body worldwide, including training yards and racecourses.

Newspaper reports suggest that Mr Johnson will not be appealing these charges, and will release a full statement early this week.

 

HUMAN ATHLETES

This case raises a number of interesting comparisons with human athletes. For example, compare the BHA position on prohibiting neurectomies because of the risk of damage to the horse (and rider) with that of professional footballers: http://www.sabotagetimes.com/football-sport/dominic-matteo-i-was-given-painkilling-injections-at-leeds-united-and-liverpool-and-now-i-cant-even-lift-my-kids/; and http://www.guardian.co.uk/football/2011/mar/07/alex-mcleish-barry-ferguson-injection

Some might argue that horses cannot consent to whether they want an injection or not so we should err on the side of caution, but is this really so different for professional human sport? With the stakes so high, can athletes really say no when asked by their manager to play through the pain? Or is there a responsibility on teams / leagues to effectively protect athletes from themselves? There is some limited precedent for this idea as actual / suspected concussions currently prohibit an immediate return. What other operations / procedures could prohibit a return to play, and how long should this prohibition last?

It is also interesting to compare the position of human non-analytical doping findings (http://www.wada-ama.org/World-Anti-Doping-Program/Sports-and-Anti-Doping-Organizations/The-Code/), with the position of the BHA (http://rules.britishhorseracing.com/Orders-and-rules&staticID=126634&depth=3). Maybe it is time that the BHA is more explicit about its use of intelligence?

See also this article on applying non-analytical rules to horse racing: http://www.governmentlaw.org/files/Non-analyticalPositivesFinal.pdf

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About Kris

Associate Professor in Sports Law, Staffordshire University; British Gymnastics Senior Coach

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