With the culmination of the Spring Racing Carnival upon us, it is timely to revisit the recently introduced rules for banned substances that have caused some controversy in the Racing Industry, as recent cases show, it is possible to breach the Cobalt rules in relatively innocent circumstances.
Cobalt, a naturally occurring trace element, has been the substance at the centre of an ongoing doping scandal in the racing industry.
The supplement, which may normally be present in horses at very low levels as a result of the ingestion of feedstuffs that contain it in trace amounts, is also present within the structure of Vitamin B12.
Cobalt can also be administered to horses easily as a powder or injection.
This supplement has raised concerns in the horse racing community, as research has shown that mice would produce a 30% increase in the number of red blood cells and haemoglobin when administered Cobalt. With more red blood cells generated, there is a greater ability to carry oxygen through the body and would cause peak performance levels to be maintained for longer.
On 14 April 2014, Racing Victoria introduced a prohibition threshold for the substance cobalt. If cobalt was detected at a concentration above 200 micrograms per litre in urine in a race-day sample, it was deemed a prohibited substance. Following this introduction, the Australian Racing Board announced in late December that the Rules of Racing would be amended to introduce a national threshold for cobalt, effective 1 January 2015.
However, trainers said they were concerned that proper cobalt testing procedures were not followed, and fear that they could be affected by departures from testing procedures which do not consider how levels of cobalt in horses are affected by extraneous factors, such as naturally occurring, being present in feed, or being administered by veterinarians.
Since the introduction of the rule in 2015, over 100 trainers have been prosecuted, and there have been serious consequences for some, including highly successful trainers in the industry who had trained horses to win the Melbourne Cup, Cox Plate and Caulfield Cup.
In January 2016, prominent trainers Danny O'Brien received a four-year sports ban, and Mark Kavanagh was suspended for three years by the Racing and Appeals Disciplinary Board. Kavanagh and O'Brien immediately appealed these suspensions to the Victorian Civil and Administrative Tribunal ('VCAT'), which granted them a stay to continue competing until the appeal had been decided.
The bans were officially overturned in March 2017. The basis for this decision was that it was found that Racing Victoria had substantially departed from proper cobalt testing procedures between April 2014 and August 2015. The VCAT Judge found that the trainers were not aware that a veterinarian, Dr Tom Brennan had administered the cobalt to the horses in a pre-race drip. The veterinarian in question was also banned in 2016.
Following the trainers’ successful VCAT appeal, Racing Victoria appealed to the Victorian Court of Appeal. The Victorian Court of Appeal ultimately reaffirmed the VCAT decision. It was satisfied that Kavanagh and O’Brien had not engaged in the type of deliberate misconduct alleged by Racing Victoria.
The Court of Appeal’s decision was remitted to VCAT for penalties to be handed to the two trainers. O’Brien and Kavanagh were issued fines of $8,000 and $4,000 respectively by VCAT’s Justice Greg Garde. The fines issued were deemed a sufficient punishment to fit the accidental ingestion of cobalt by the horses trained by the two trainers. The issue with penalty was whether it was appropriate to issue a monetary fine, or to ban the two trainers from competing. Garde J found that in this instance, there was little or no personal culpability for the administration of the cobalt, and it was reasonable for any penalty imposed to reflect that fact. It would be inappropriate for any penalty to express denunciation of their actions or to act as a general deterrent because of the absence of culpability. His Honour noted that the imposition of a five-year disqualification on the veterinarian who had administered the cobalt satisfied any need for deterrence.
The non-imposition of a suspension was also inappropriate when Garde J considered the ‘significant economic and other impacts that the trainers [had] sustained during [the] lengthy proceedings.’ The trainers were satisfied that the Court of Appeal’s decision ‘reinforced Justice Garde’s decision that [they], at no stage, had ever attempted to grease the rules of racing’, meaning that they had not deliberately attempted to circumvent rules against doping through the illicit administration of cobalt to their horses. The two were worried, however, that the damage that had been done to their respective businesses and reputations was possibly irreversible.
This case highlights how innocuous actions from parties can lead to serious consequences, especially due to misinterpretation or misapplication of anti-doping policies. This is why it is important for those involved in competitive sports to be on the same page about anti-doping guidelines, with testing procedures established clearly so that instances of misconduct, albeit accidental, can be avoided.
See Racing Victoria Limited v Mark Kavanagh and Danny O’Brien  VSCA 334 and Kavanagh v Racing Victoria Limited (No 2) (Review and Regulation)  VCAT 291 for more information.
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Paul Horvath - Principal of SportsLawyer has a breadth of knowledge in SportsLaw particularly on drugs in sport. Paul has appeared in numerous anti-doping cases before the Court of Arbitration of Sport (CAS). SportsLawyer has successfully represented trainers before the various racing and discipline boards of the three racing codes.
Paul was on the Board of Harness Racing Victoria 2009- 2012.