Please forgive me for taking so long to respond to Dane's last post on
the procedural and substantive aspects of the AERC Drug Policy. I
needed time to think and do some reading.
In this post I will try to briefly summarize our discussion to date and
explain why AERC really has TWO drug rules. Next, I'll try to explain
how AERC apparently uses a very old common law doctrine in prosecuting
drug cases. Finally, I'll close with a few observations.
I. Summary of Posts To Date
To begin, there are at least four groups involved with the AERC drug
rule. Those who are responsible for developing and enforcing the
policy; those who generally understand and agree with the rule as
written; those who are somewhat confused as to the scope and application
of the rule; and finally, those who produce products impacted by the
rule. To date, manufacturers of drugs/nutraceuticals have not been a
party to our discussion.
We have learned that AERC Rule 13 requires endurance equines to compete
entirely on their natural ability. The rule specifically prohibits from
competition "equines who contain evidence of the administration of
abnormal substances or of normal substances in abnormal amounts
(exogenously administered compounds even if normally found
endogenously)." If one reads this quoted portion of Rule 13 carefully,
it becomes obvious that there are TWO ways to violate the rule.
The first type of drug prosecution involves the phrase "administration
of abnormal substances." This is the pharmaceutical (licensed drug)
aspect of the rule. Dane has written that a: "drug is a substance that
has a physiological effect THAT IS NOT A NUTRIENT. All nutrients are
included in one of six classes: (1.) water; (2.) protein; (3.) vitamins;
(4.) carbohydrate; (5.) fat; (6.) minerals." (Emphasis mine.) There is
little disagreement the licensed drugs at issue are not normally found
in the equine body.
Although pharmaceutical cases are more clear cut, they still give rise
to the problem of clearance times. In many posts, 72 hours has been
mentioned. However, current laboratory methods can detect substance in
parts-per-billion and, therefore, 72 hours may not be long enough to
prevent a positive test. To this point, no writer has been able to
explain how AERC differentiates between a positive (violation) and a
positive (residual non-violation). This is interesting in that I am
told by professors at our local vet school that many drugs, bute for
example, may leave detectable amounts in the equine blood stream for
months and even years after administration. The AERC BoD and the Vet
Committee feel strongly that riders and members are responsible for
solving the clearance time problem.
The second violation concept in Rule 13 deals with so-called
nutraceuticals. At the out-set of this part of the discussion let me
make a correction to my post on the "intent to improve performance"
(i.e. the mens rea discussion). I have studied both the AERC Rules on
the AERC Homepage and the latest version in my library (1994). Unless
revisions have been made since these two sources were published, THERE
IS NO SUCH INTENT ELEMENT IN AERC RULE 13. I apologize for not
immediately going to the source document instead of relying on E-net
quotes.
What Rule 13 does say about nutraceuticals is "AERC prohibits from
competition equines who contain evidence of . . . normal substances in
abnormal amounts (exogenously administered compounds even if normally
found endogenously)." There is no published AERC definition of the
terms "abnormal amounts" or "exogenously administered compounds." There
is a partial list of substances/nutraceuticals banned during competition
published by AERC. This list apparently does not indicate relevant
clearance times. Again, riders/members have complete responsibility to
determine (1) whether their exogenously administered compounds (the
stuff we are feeding) are not normally occurring in their horse, and (2)
will the substance result in a positive drug test. Advertising claims
from manufacturers are not a defense.
To conclude this portion of the post, I'll summarize the AERC position
by again quoting Dane: "Therefore, it becomes the obligation of the
owner/rider to take responsibility for the compounds given their horse.
If they are unsure as to the effect of anything they may administer,
then withdrawing the substance so that it has no effect on performance
during competition is prudent."
II. The Common Law Doctrine of Res Ipsa Loquitur
(The Act Speaks For Itself).
Dane mentioned that a positive drug test was accepted by the BoD as
conclusive evidence of a Rule 13 violation: "the thing speaks for
itself," he said. What he was referring to was a very, very old common
law rule of evidence. Within the limits of my DIMR, I'll try to explain
it.
All Americans, either by birth or naturalization, are guaranteed
certain fundamental rights. For purposes of this discussion, these
rights are extended to citizens of other countries by either their
membership in AERC or by participation in an AERC sanctioned event. One
such fundamental right is that we are considered innocent until proven
guilty. In other words, the state has the burden of proving the
defendant committed the crime. In civil matters the person making the
claim usually has the burden of proving their case. That is, once all
elements of the plaintiff's legal theory (a prima facie case) has been
presented by the plaintiff, the defendant has a right to rebut the
evidence and/or explain why that evidence doesn't matter.
There are exceptions to the rule. The Doctrine of Res Ipsa Loquitur is
a common law concept that shifts the burden of proof in civil cases from
the plaintiff (in this case, AERC) to the defendant (the owner/rider of
the horse). The doctrine applies to events that only occur where there
has been some negligent act. Stated differently, some courts conclude
that the OCCURRENCE ITSELF is enough to prove negligence. For example,
if you cut your mouth on a chunk of glass that was in a can of peas
opened just before eating, the presence of the glass alone may be enough
to shift the burden of proof to the cannery. In other words, but for
some negligence, cans of peas do not contain glass.
To invoke the Res Ipsa doctrine in Rule 13 cases, AERC must generally
prove three things: (1) A positive drug test does not normally occur
unless there was prohibited conduct; (2) Such conduct is within the
scope of duty the member owes to AERC; and, (3) Neither AERC nor some
third party contributed to or caused the positive test.
I'll attempt to explain. In Step (1) AERC will use expert testimony to
show that a blood and/or urine test came back positive. The actual
administration of drugs may be shown by inference. That is, direct
witnesses are not needed, only that the rider or owner entered the
drug-positive horse in the AERC sanctioned event.
Step (2) is satisfied when a members joins AERC or a rider enters an
AERC sanctioned event; those acts alone represent agreement to comply
with all AERC rules. The promise not break AERC rules then becomes an
absolute duty owed to AERC.
To satisfy Step (3) AERC must show that neither they nor some third
party contributed to or caused the positive test. This is where the
sampling procedures, the chain-of evidence and the laboratory process
come into play. AERC must unconditionally prove that all uniform
procedures were followed to the letter.
If AERC can meet this three part test, then under the res ipsa concept
the responsibility of going forward with the evidence shifts to the
owner/rider. Possible defense strategies can be the subject of a future
post if there's interest.
III. Conclusion
It is obvious now that AERC has adopted an extremely simple way to deal
with equine drugs and nutraceuticals. The vet and rules committees,
with BoD approval, have avoided a lot of work by shifting total
responsibility for compliance to owners and riders. Under the current
rule, members must either become or hire biochemists to determine what's
in every substance, drug, remedy, herb, nutraceutical, foodstuff or
product given to their horses. Further, members are entirely
responsible for determining minimum clearance times.
Is shifting the scientific burden to members rational? Is it fair? Is
there a reasonable alternative? What responsibility do manufacturers
have, if any? These are political questions for future discussion.
Our family is heading to the Death Valley Multiday so I'll address any
questions when we return. Good cheer to all and a happy new ride year.
Ramey.