Matter of Ford v. New York State Racing and Wagering Board

This appeal addresses the legal grounds for rulemaking regarding out-of-competition race horse testing and whether such testing would involve unconstitutional intrusions by testing agents. In 2009 the defendant, the New York State Racing & Wagering Board (“Board”), promulgated a rule in response to the introduction of a new generation of doping agents into the competitive world of horse racing. The new drugs could enhance horse race speeds while eluding race day detection. To combat these new drugs, the defendant implemented a rule requiring race horse owners and trainers to make harness race horses available for random testing days before the race

The petitioners commenced this action prior to the rule’s effective date. The petitioners argued that creating such a rule was not authorized by the respondent’s enabling legislation, and that the rule constituted a constitutionally unreasonable intrusion upon off-track farms which stabled race horses. The Supreme Court found that the Board had acted in excess of its legislatively delegated power, while the Appellate Division held that the rule was valid under the Board’s “broad, legislatively conferred authority to regulate and supervise race meets . . . [where] wagering is permitted.”

During litigation, the challenged rule was amended. The Court therefore had limited review power, and confined its review to whether the Board’s promulgation of any rule mandating out-of-competition testing, and whether the sort of testing regimen proposed would be a constitutionally unreasonable intrusion by the Board’s agents. The Court then examined the long history of horse doping regulations and how legislation had struggled to keep up with changes in doping technology that would create regulatory loopholes that posed a threat to the integrity of the sport and the health and safety of both horses and jockeys.

The petitioners argued that tests were available which would avoid the intrusion issue; tests which—on race day—could pick up traces of the new protein-based enhancers, which could be administered long before the race and which would previously undetectable except for immediately after being administered. The court stated that though the tests existed, they were extremely expensive and their results questionable. The court stated it would be unreasonable to require the Board to use these tests, and instead applied a rational basis test to the Agency’s decision.

The Court rejected the petitioner’s view that section 301(2)(a) demonstrated that the Board only had testing authority at race meetings. It stated that the legislature may give reasonable discretion to administrative officials to determine what methods were to be used, and that the language of the statute explicitly allowed for general supervision over the race meetings. The plain language of the legislation allowed specifically for regulatory action to avoid the circumvention of existing rules. The use of long-term drugs that could pass game day testing, according to the Court, was the exact type of evasion that the legislation envisioned.

The Court concluded by stating that based on both the language of the text and legislative intent, random drug testing was a reasonable exercise of administrative authority and this authority extended both to private horse farm owners and to those licensed to board race horses. Those who stable race horses on their property could “reasonably be deemed to have relinquished a privacy-based objection” by opening up their property to horses of such a regulated nature.

24 N.Y.3d 488 (N.Y. 2014)

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