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UK trainer establishes case as to not being responsible for positive sample

Result of an Enquiry (M. Botti) heard by the Disciplinary Panel on Thursday 27 June 2019.

Marco Botti

1. On 27 June 2019  the independent Disciplinary Panel of the British Racing Authority (BHA) held an enquiry into:

i) Whether Marco Botti, a licensed trainer, was in breach of Rule (G)2.1 of the Rules of Racing by virtue of the fact that Atenolol, a Prohibited Substance within the meaning of Rule (G)16, was found in the urine sample taken from CROWNED EAGLE, trained by Mr Botti, following its winning of The Matchbook Betting Podcast Roseberry Handicap Stakes (Class 2) at Kempton on 31 March 2018; and 

ii)  What consequences should follow by way of disqualification of the horse and other penalties if Mr Botti was in breach. 
 
2. Mr Botti was present at the enquiry represented by Richard Liddell of counsel.  The BHA’s case was presented by Andrew Howell, Head of Regulation. 
 
3. There was no objection to any Member of the Panel. 
 
4. In his Schedule (A)6 submission Mr Botti has admitted that Atenolol was present in the post-race samples of urine taken from CROWNED EAGLE and that it is a substance that is prohibited to be in the horse’s body on the Raceday.  He also accepts that by reason of the positive sample the horse must be disqualified under Rule (A)74, and that as the trainer of CROWNED EAGLE he is the Responsible Person within the meaning of Rule (G)2.1 and as such is liable to a penalty under Rule (G)11.3.1 unless he can bring himself within the provisions of Rule (G)11.4. 
 
5. Rule (G)11.4 provides:
  
“If the Responsible Person establishes . . . (1) the Prohibited Substance . . . was not administered intentionally by the Responsible Person or by any other Person (whether or not connected to the Responsible Person in any way); and
(2) the Responsible Person had taken all reasonable precautions to avoid violating Rule 2.1 or 2.2
then no penalty shall be imposed on the Responsible Person”.
 
6. Mr Botti claims that he has established the conditions set out in (G)11.4 and that no penalty should therefore be imposed.  To assess this claim it is necessary to examine in more detail the background and the matters ascertained in the course of the BHA investigation.  What is set out below is chiefly derived from statements and documents included in the agreed bundle, though Mr Botti did add to his statement in oral evidence. 
  
Background
 
7. CROWNED EAGLE was a 4yo in March 2018.  The gelding had been purchased by Mr Botti at the Tattersalls horses-in-training sale in October 2017.  Its previous trainer was John Gosden.  Its official rating was 95.  Mr Botti has described it as an “excellent horse with a fantastic temperament and easy to train”.  Its new owners were a partnership in the name of Les Boyer and a syndicate called Excel Racing. 
 
8. The horse ran twice on the All Weather in the course of the 2017/2018 winter without winning.  The Matchbook Betting Podcast Roseberry Handicap Stakes (Class 2) at Kempton was thus its third race with Mr Botti as its trainer. The night before the race the horse was checked over by Mr Botti’s vet.  The next morning it travelled down to Kempton accompanied by a female groom who had been working for Mr Botti for several years. The driver of the horsebox an ex-employee of Mr Botti, no longer working for him. They arrived at the racecourse shortly after midday.  The horse was put in a box at the racecourse stables where for about the next few hours it remained until it was time for it to be prepared for the race. The groom checked the horse about 10 minutes after arrival to see that it had settled, then went and had some lunch, and after that (to quote from her statement) “had a nap”, we presume in a lounge area provided for grooms looking after runners for rest and relaxation.  In her statement she says she “was probably gone for about two hours” but it may have been longer than that.  The horse box driver did not have a stable pass so there was no one else from Mr Botti’s stable, other than the female groom, who could have attended the horse whilst it was at the racecourse stables. 
 
9/ Mr Botti came to Kempton to saddle CROWNED EAGLE.  He was on his own, and needed assistance with saddling which he obtained from a male groom who had worked for him but was now with another trainer.   Mr Botti said the horse looked well and behaved well.  It also ran well, as expected, leading almost from the start.  It was well supported in the market, starting at 6-1 the joint third favourite in a field of 13. 
  
10.  Atenolol, the substance found present in the postrace sample of urine taken from CROWNED EAGLE, is a cardio-vascular beta-blocker that lowers blood pressure by reducing heart rate and myocardial contractility.  It is used in the management of hypertension, angina pectoris, cardiac arrhythmias and myocardial infarction.  There are numerous medicaments containing Atenolol, licensed in the UK for use in humans, available in tablets or liquid form, and regularly prescribed for patients with high blood pressure or who had suffered heart attacks, and occasionally for migraine prevention.  The therapeutic use of Atenolol on horses would be unusual, and thus it is not a medication ordinarily present in training yards.  However the drug is capable of having a pharmacological effect on many animals including horses, and it is therefore a Prohibited Substance prohibited on Raceday. 
 
The Investigation
 
11. The certificate of analysis identifying the presence of Atenolol in the urine sample taken from CROWNED EAGLE on 31 March 2018 was issued by the testing laboratory on 25 April 2018. 
 
12. On 26 April 2018 Tim Miller, a BHA Investigating Officer Team Leader, was assigned the task of carrying out an investigation.  On 2 May 2018 Mr Miller, accompanied by Derrick Morris, a Stable Inspecting Officer and Gordon Markham, Equine Welfare Integrity Officer, made an unannounced visit to Mr Botti’s stable at Newmarket.  Mr Botti was first handed a letter informing him of the positive result of the analysis of the sample taken from CROWNED EAGLE after the Kempton race on 31 March 2018. 
 
13. In the course of this visit all medication records were inspected, the contents of the medication cabinet were checked, the feed and supplements record inspected, and a lengthy interview with Mr Botti took place. 
 
14. No record or other document contained mention of any medication which might have contained atenolol, and there was no medication found on the premises containing this drug. 
 
15. It so happened that Peter Ramzan a veterinary practitioner from Rossdales, who are Mr Botti’s vets, was at the stable at the time of Mr Miller’s visit.  He told Mr Miller that he had never used Atenolol on any horse and he was not aware of the product ever being used in veterinary medicine.  Clinical medical records relating to CROWNED EAGLE in the possession of Rossdales have been produced and there is no medication listed which contains Atenolol. 
 
16. Mr Miller spoke to nine members of the staff at the stable who Mr Botti told him would or might have had contact with CROWNED EAGLE.  None were taking Atenolol or any other form of blood pressure medication.  Mr Miller also spoke to ‘service providers’ to the yard.  The only one who had had access to the horse was the farrier. It was established that neither he nor any of his staff had taken medication that might have contained Atenolol. The three persons who might have had contact with the horse on the day of the race, the female groom, the horsebox driver and the person who helped Mr Botti to saddle the horse were questioned by Mr Miller.  Neither the driver nor the saddling assistant think that they ever touched the horse.  In any event none of the three were on any medication. 
 
17. In the course of Mr Miller’s visit further samples of urine were taken from CROWNED EAGLE and another horse.  Neither was found to contain Atenolol. There had been a recent out of competition testing visit to Mr Botti’s stable, on 13 April 2018.  Blood was collected from 25 horses.  No sample contained Atenolol. 
 
18. Particular attention was given by Mr Miller and his team to instructions issued by Mr Botti to his staff directed at eliminating the risk of contamination. This was of special significance as on 30 November 2017 Mr Botti had been found by the Disciplinary Panel to be in breach of Rule (G)2.1 by reason of a prohibited substance, Cetirizine, being found in a horse called INDIAN DANDY (IRE) after running at Yarmouth, the probable source being contamination resulting from a stable employee urinating in the horse’s box. It was evident that Mr Botti had since posted Notices around his stable, and given verbal instructions, warning of the risks of contamination arising from urinating, consuming food and drink, and personal medication in or in the vicinity of the stables. Mr Miller had also spoken to the stable employee involved in the INDIAN DANDY (IRE) case who claimed that he had not urinated again in the stables and had no recollection of ever mucking out CROWNED EAGLE’s stable, and in any event was not taking any medication. 
 
19. Though the BHA investigation into the state of affairs at Mr Botti’s stable and whether it could be a possible source of the Atenolol found in CROWNED EAGLE could be described as thorough we find it hard to make the same assessment about the investigation into the situation and security measures in force at Kempton. (Mr Miller’s statement contained at least 24 paragraphs about enquiries conducted at Mr Botti’s stables and questioning of his staff, and two paragraphs concerning enquiries relating to Kempton).  Mr Miller did obtain and review the CCTV footage of the stables at the course, but it was of no assistance as apparently the positioning of the cameras was such that they did not cover box 20 in which CROWNED EAGLE was stabled.  This feature of the security system installed at Kempton was not explained by anyone from the racecourse executive, and nor were we informed about the number of boxes which were not subject to CCTV surveillance. Further Mr Botti’s groom looking after CROWNED EAGLE was never informed that the box allocated to her horse was not covered by the CCTV cameras, and we were not provided with any information as to whether this was normal practice, and if it was the reason for it.  Quite apart from this particular point, there was no evidence before us concerning the security at the racecourse stables. We are prepared to assume that the practice was that only stable staff with an official pass were admitted to the racecourse stables but we would have expected that assumption to be supported by evidence of what measures were in force to ensure that this practice or rule was observed.  We believe the total number of runners that afternoon was nearly 60 which would have meant that at least that number of stable staff would have been able to access the stable area.  If there was not in place and operating an efficient method of control at the entrances there would have been significant risk of unauthorised persons obtaining access. 
 
20. There was some evidence concerning the cleaning of stables at Kempton in accordance with BHA General Instructions.  A Level 2 cleaning, involving removing all bedding and steam cleaning or pressure hosing all surfaces, had last been carried out on box 20 on 20 January 2018 (a minimum of every three months is recommended), and there was a signed certificate dated 28 March 2018 (on our understanding applying to cleaning after the Kempton meeting before the Roseberry Handicap meeting) that “all previously occupied racecourse stables had been disinfected” in accordance with the BHA GI.  This document is of limited assistance as we were not informed whether box 20 had been occupied at this previous meeting. 
 
Mr Botti’s investigations
 
21. In May 2018 Mr Botti retained an equine toxicologist, Dr Mark Dunnett, to carry out certain tests on CROWNED EAGLE. He collected a blood and tail hair sample from the horse and subjected them to analysis. Neither sample showed the presence of Atenolol.  The absence of the substance in the blood sample was, says Mr Dunnett, to be expected as “even a dose of Atenolol at a therapeutic level clears from the blood within a matter of days”. As for absence in the hair sample, which is not challenged by the BHA, Dr Dunnett considered this to be notable.  The inference to be drawn is in large measure agreed by the BHA, that taking into account the low or extremely low level of Atenolol detected in the urine sample CROWNED EAGLE had been exposed to only a “trace” (Dr Dunnett’s word) or “small amount” (BHA’s words) of Atenolol far below what would be considered an equivalent therapeutic dose for a horse. 
 
Submissions
 
22. Mr Howell on behalf of the BHA submitted that as it was not possible to identify the source of the substance found in the sample it must follow that Mr Botti was unable to establish that the substance was not administered intentionally – that was a possibility – and thus could not fulfil the burden imposed upon him as the “responsible person” by Rule (G)14.4.1. That being the position, argued Mr Howell, there was no need to consider whether the trainer had shown that he had taken “all reasonable precautions” as required by 14.4.2. 
 
23. This submission ignores the decision of the Appeal Board on 23 November 2017 in the case of Philip Hobbs that the inability of the trainer to show what was the source of the substance did not necessarily have the consequence of him failing or being unable to establish no intentional administration as required by Rule (G)11.4.1.  If on a consideration of the evidence, which must be substantial, cogent and persuasive, it appeared improbable or unlikely that there had been an intentional administration of the substance, the trainer can be regarded as having established the condition in (G)11.4.1. 
 
24. Mr Liddell on behalf of Mr Botti asked us to apply the ruling in Philip Hobbs which he argued was on its facts very similar to this case.  The evidence, particularly that relating to the amount of the substance detected in the sample, indicated that a deliberate administration was highly unlikely.  And Mr Botti had taken all reasonable precautions to avoid a violation of the anti-doping Rule. 
 
Discussion and Conclusions
 
25. That CROWNED EAGLE at some time prior to the running of The Matchbook Betting Podcast Roseberry Handicap Stakes (Class 2) on 31 March 2018 had ingested or absorbed a quantity, however miniscule, of Atenolol is irrefutable. How and when it was ingested or absorbed is a matter of speculation.  In our view it is unlikely to have happened at Mr Botti’s stable because there was no trace of the drug to be found there, and none of the staff who looked after the horse or might have entered his box had used or possessed the medicine. It is possible that the horse might have ingested or absorbed the substance whilst being stabled at Kempton.  That is because he was unattended in his box for some hours, and in the absence of CCTV surveillance someone could have gone to the box and stroked or touched the horse without being detected.  And this ‘someone’ could have been on medication containing Atenolol.  This sequence of events cannot be eliminated as sheer fantasy.  But if anything like this happened what in our view can be discounted is the sinister administration of the drug by any person in contact with the horse when at Kempton.  That is by reason of the small amount, Dr Dunnett calls it a ‘trace’, of the drug found in the sample taken within hours of the horse arriving at Kempton, and the absence of any trace in the hair sample. The experts agree that this points to the quantity ingested or absorbed being far below what would be considered a therapeutic dose and thus wholly inconsistent with the occurrence of a deliberate administration.  We have no difficulty in concluding that there is no evidence of an intentional administration, and such evidence as there is points in the opposite direction that any administration is likely to have been accidental or unintentional. We consider the requirements of Rule (G)11.4.1 have been fulfilled by Mr Botti. 
 
26. We can move on to the second part of Rule (G)11.4 which requires the trainer to establish that he has taken “all reasonable precautions” to avoid a breach of the ant-doping Rule. Mr Liddell again draws comparison with the Philip Hobbs case and claims that the BHA investigation has shown that Mr Botti’s stable was efficiently run with scrupulous regard to the measures that need to be taken to avoid any unintentional cross contamination of a horse with a prohibited substance.  We accept that submission in so far as it relates to the organisation and administration of Mr Botti’s stables at Newmarket. However, there is in this area a significant factual distinction with the Philip Hobbs case: in that case the Panel found that the horse had not been left alone on the way to or at the racecourse, and this finding was referred to more than once in the Appeal Board’s decision.  As we have pointed out CROWNED EAGLE was left unattended for a significant period of time whilst stabled at Kempton and it is feasible that contamination occurred from contact with some unknown person other than Mr Botti’s groom.  It is by no means the only explanation for contamination: the box may not have been effectively cleaned, for example.  However, the lack of continuous supervision is at least potentially causative of contamination by a stranger and thus needs to be considered in the context of whether there had been a failure to take reasonable precautions. It is not a straightforward problem: the horse’s groom cannot be expected to attend the horse for the whole time it is in the racecourse stable. She must be allowed to eat and drink in the canteen provided, to relax and rest, to change her clothing before parading the horse in the public, and, where the horse is stabled overnight, to sleep in separate accommodation. Continuous supervision would require the trainer to provide at least two grooms to accompany a horse to the races. If the trainer has more than one runner at the meeting and each is accompanied by a groom they should be able to organise their routine so that no horse is ever left unattended. But a single runner would on most occasions require the provision of two grooms.  That would significantly increase the cost to owners, and with small trainers at least potentially give rise to staffing problems, particularly if they have single runners at more than one meeting.  If the overall test is what is reasonable, a major factor must be that what is being considered is security in an area which is or should be controlled by the racecourse so that no persons who have not been vetted by the authorities are permitted entry. In our view it would not be right for us to rule that it was unreasonable for Mr Botti not to provide an additional groom to accompany CROWNED EAGLE so as to ensure that it was never left unattended whilst in the racecourse stables at Kempton.  It may be that we would have reached a different view had it been known that the box allocated to the horse was not covered by the CCTV cameras.  But neither Mr Botti or the groom were at any material time informed about this.  We also think it appropriate to add that the BHA might wish to consider whether the risk of sinister administration or unintentional contamination by persons unconnected with the horse whilst in the security area of the racecourse stables is such as to require specific directions as to the degree of supervision the trainer must provide. The consequences of such directions might be far reaching. 
 
27. Accordingly, our decision is that Mr Botti has established the requirements of Rule (G)11.4.1 and 4.2 and no penalty will be imposed. 

Return of prize money
 
28. The usual consequence of a disqualification is a direction that all prize money paid to the owner, trainer or rider should be repaid and any trophy surrendered.  Mr Liddell has sought an exemption from this Rule, on the grounds that there were “exceptional reasons” for not making such a direction, those reasons being that the prize money had contrary to the usual practice where there was a positive analysis of a sample, been paid out, and that one of the owners was a syndicate and it was impractical to obtain repayment from all the members, especially as the money had been distributed to them over a year ago. (The application was made on the footing that Rule (A)74.2.4 and 2.5 applied, but these Rules concern analysis of a “stored sample” which did not happen in this case.  However it makes no difference as (A)74.2.11 and 2.12 are similarly worded and there is an “exceptional reasons” proviso). In our view the application is misconceived.  If the prize money had not been paid out there would be no need for any direction for the money to be repaid, so the fact that it had (mistakenly) been paid out cannot be an exceptional reason.  Nor can the fact that one of the owners is a syndicate be an exceptional reason.  We can see no insoluble difficulty in the syndicate recovering from members their share of the prize money. A direction is accordingly made under Rule (A)74.2.11 and 2.12.  This direction shall not apply to money paid to the stable of the horse.
  
Notes:

1. The Panel for the Enquiry was: Patrick Milmo QC (Chair), David Adam and John de Moraville. 
 
2. Atenolol is a cardio-vascular beta-blocker that lowers blood pressure. It is used in the management of hypertension, angina pectoris, cardiac arrhythmias and myocardial infarction in humans. Although it can be prescribed in animals (including horses) in the UK under the “Cascade” legislation, the therapeutic use of atenolol in horses would be unusual.

Atenolol is capable of having a pharmacological effect on multiple mammalian body systems. Under Schedule (G)1 (Prohibited Substances) paragraph 7, it is a Prohibited Substance prohibited on raceday. which means it cannot be in a horse's system on raceday.
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