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Discussion Paper: AERC Rule 13, Is it Working As Planned?
by Ramey Peticolas-Stroud, AERC Drug Policy Work Group
I. Introduction
I have been asked to comment on the existing AERC Drug Policy. To be
clear at the on-set, I agree with the NO Drugs philosophy embodied in
the existing rule. However, it is impossible to administer this policy
in an even-handed manner. I will explain my statement later in this
paper. First, I will summarize the existing policy. Next, I will
propose a few amendment concepts which are intended to make our drug
rules more fair and manageable. Finally, I will describe a common law
doctrine that may improve fairness and reduce the expense of drug rule
prosecutions.
II. Current AERC Drug Policy.
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 indigenously)." If one
reads this quoted portion of Rule 13 carefully, and setting aside for a
moment alternative therapies, it becomes obvious there are two basic
ways to violate Rule 13.
A. Pharmaceutical Cases
The first type of drug prosecution involves the phrase "administration
of abnormal substances." This is the pharmaceutical (licensed drug)
aspect of the rule. President Frazier 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." There is
little disagreement that the licensed drugs at issue are not normally
found in the equine body.
B. Nutraceutical Cases
The second violation concept in Rule 13 deals with so-called
nutraceuticals. AERC Rule 13 states in part: "AERC prohibits from
competition equines who contain evidence of . . . normal substances in
abnormal amounts (exogenously administered compounds even if normally
found indigenously)."
There is no published AERC definition of the terms "abnormal amounts" or
"exogenously administered compounds." There is, however, a partial list
of substances/nutraceuticals banned during competition published by
AERC. This list 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 apparently not recognized as a defense.
Unfortunately, it is not possible to test for certain nutricuticals
prohibited by Rule 13. One cannot wonder but why we have a rule that is
impossible to enforce? If this aspect of Rule 13 is to stand, then
other types of evidence beyond lab tests might be considered.
III. AERC Rule 13 Problems.
The existing AERC Drug Policy 13 give rise to three areas of concern:
(1) Clearance Times; (2) Enforcement; and (3) Cost of Administration.
A. Clearance Times
Although the prohibition of pharmaceuticals is clear, it still gives
rise to the issue of clearance times. How are members to know when to
cease administration of prescribed medications.
As a Special Prosecutor for the crime of Arson, and as a retired Chief
Deputy State Fire Marshal, I have some knowledge of forensic laboratory
testing capabilities. When the original AERC drug policy was
formulated, gas chromatography capability was in the "parts-per-million"
range. Nowadays, laboratory analyses are often stated in
"parts-per-billion." In other words testing apparatus has improved
significantly.
In days gone by, trace amount violations of Rule 13 did not present a
policy question as they probably went unnoticed. Today, as the AERC
Drug Testing Program becomes fully operational, trace amount violations
of Rule 13 will be reported often.
Is any reported level, including trace amounts, to be a violation? A
middle ground between the zero tolerance principle and the evolution of
testing laboratories should be recognized by AERC. One way to do this
is to modify existing enforcement procedures.
B. Enforcement
At common law there was a principle called De Minimis Non Curat Lex:
"The law does not care for, or take notice of very small or trifling
matters." This policy is now embodied in American law at state and
federal levels.
Applied to Rule 13, the No Drugs Allowed principle could stand as
written but a De Minimis exception would be added to the prosecution
process. Under this concept, residual trace amount violations, as
determined by the AERC veterinary committee, would not be considered a
violation.
Unfortunately, nothing in rule-making is quite so simple. Disputes as
to validity of the veterinary committee decision will arise. To address
this subject we now turn to the subject of burden of proof.
C. Burden of Proof
Any positive drug test is currently accepted by the AERC Board of
Directors as conclusive evidence of a Rule 13 violation. This procedure
is an example of the Common Law Doctrine of Res Ipsa Loquitur (The Act
Speaks For Itself). To understand Rule 13 prosecutions a brief
explanation of this legal doctrine is needed.
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. The state has the burden of proving the defendant committed the
crime. In civil matters the person making the claim has the burden of
proving their case.
There is an exception to this general rule. The Doctrine of Res Ipsa
Loquitur is a common law concept that shifts the burden of proof in
certain civil matters from the plaintiff to the defendant.
Under Res Ipsa, the plaintiff must only prove the "occurrence itself,"
and not the acts leading up to the event. 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 (i.e., but for some negligence, cans of
peas do not contain glass).
AERC currently uses the Res Ipsa doctrine to prosecute Rule 13 cases. To
do so AERC must 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. 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.
As mentioned above, this is how AERC drug cases are prosecuted
currently. If a de minimis exception were to be included in the rules,
the current system would not be impacted to a great extent. For
example, let's assume a lab test is positive for bute. The AERC
veterinary drug sub-committee reviews the report and concludes the level
was de minimis. As a warning to others, the responsible party is
notified of the positive test and the subsequent de minimis ruling, then
a report of the action could be published in Endurance News as are other
official AERC acts.
On the other hand, let's assume the vet committee says the level was
therapeutic and the defendant disagrees. Once AERC proves the three
elements described above, the burden of proving a de minimis exception
would shift to the defendant.
Defendants would, at their own expense, have to prove by a preponderance
of the evidence (more likely than not) that the level present was
neither therapeutic nor masking. The specific language would have to be
worked-out among the drug committee and then approved by the Board of
Directors.
III. A Final Comment
A last comment needs to be made about AERC Rule 13. The language of the
rule could use a good clean-up. Currently the rule is far too vague and
hard to explain. Accordingly our members do not receive fair warning of
prohibited conduct.
Perhaps the general no drugs policy could be stated in the AERC Rules
and a separate Drugs and Medication pamphlet adopted by reference as we
now do with the ride manager and veterinary handbooks.
Thank you.
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