Brent Malmstrom
“No one should ever be at risk to losing their entire economic viability by no fault of their own”
National HBPA Release
ALTOONA, Ia.— Horse owner Brent Malmstrom told Wednesday’s opening session of the annual National HBPA Conference that he has spent more than $620,000 – “with no end in sight” — on fighting the two-year suspension handed trainer Jonathon Wong after one of Wong’s horses became the first to test positive in a post-race sample for the widely-prescribed diabetes medication Metformin under the HISA era.
And Malmstrom doesn’t even own the horse at the center of the case.
“You can agree with me or not, but I hope we can agree on one fundamental principle: No one should ever be at risk to losing their entire economic viability by no fault of their own,” Malmstrom told the gathering of the National Horsemen’s Benevolent & Protective Association, which represents about 30,000 thoroughbred owners and trainers, at Prairie Meadows. “And that is something that is happening and will continue to happen until change occurs.
“… There is fundamental unfairness where you can blatantly label someone a cheater when they’ve never had any opportunity to defend themselves,” said the West Coast businessman in the tech industry. “Back then you were labeled and branded and suspended as a cheater before you even had the results of the drug analysis… Now I understand the rules have all changed since then. But many of these changes have not helped our situation.”
Appearing via Zoom because of flight cancelations trying to get to Des Moines, Malmstrom was part of the conference’s opening panel titled “Status Report on HISA – Updates on Issues and Litigation.” Participating in person were Center for American Rights President Daniel Suhr, the lead attorney on the court challenge to the Horseracing Integrity & Safety Act legislation brought by the National HBPA and 12 affiliates in the Fifth Circuit, and prominent Indiana equine attorney Pete Sacopulos, a racehorse owner and breeder who represents the North American Association of Racetrack Veterinarians in the litigation. National HBPA General Counsel Peter Ecabert moderated the panel.
Malmstrom shared his experience as he has financed the ongoing effort to exhaust the new administrative procedures under HISA to get Wong’s case into federal court. The trainer’s case, from a race June 1, 2023, at Horseshoe Indianapolis, was the first of what has become a spate of Metformin positives. It also was among the earliest medication/drug violations sanctioned under the new policies put in place by the Horseracing Integrity & Safety Authority (HISA) corporation and its enforcement arm, the Horseracing Integrity & Welfare Unit (HIWU).
“Back in July (2023), my trainer received a notification from a HIWU investigator at 7:40 in the morning, a Saturday morning on the 4th of July weekend, that he received a positive for the drug known as Metformin,” Malmstrom said. “(Wong) had 18 hours to disperse 150 horses, because he was immediately suspended. We talk about the health and wellness of the animal, but under no circumstances was that a brilliant idea to say he’d have 18 hours to disperse 150 horses.
“… I really felt if we went in, we’d explain the facts and our set of circumstances, and there would be an amicable solution and resolution at the end. I underestimated that position; that is not how this process works. What I’ve come to realize, it doesn’t matter what any of these trainers do or don’t do. If they get an adverse analytical finding, the burden is to prove source. Unless you can prove source, nothing else matters. Think about it in a practical situation. You receive a notice roughly 30 days after the fact. So you don’t have the ability to go in and investigate to discover what happened. Our instance was a ship-in stall…. You ship to the racetrack in question, go into the receiving barn, ran the race, won the race, went to the test barn, got back on the van and shipped back to where the horse was stabled… To this day, we do not know where the source of the (medication) contact came from.”
Malmstrom said he hired the best lawyers and experts available for the arbitration hearing. “Unfortunately what I found is when you challenge this entity, they don’t like it,” he said.
“… I absolutely support the regulatory frame work that goes after those who put their own self-interest above those of the other participants. The problem we have with this case, and other cases I’ve been exposed to, (in) the vast majority of these cases, the threshold or concentration levels they’re testing for are well below any pharmacological effect that would affect the outcome of the race… What that means is it’s an environmental contamination situation.”
Malmstrom said they asked HIWU “what they are doing to investigate these (receiving barn) situations, their response was, ‘It’s not our job to investigate’ — it’s our job. But how can I investigate when everything is after the fact?”
He said an administrative law judge with the Federal Trade Commission charged with overseeing HISA ruled that HIWU has no chain of custody “as it relates to our case. So they can’t actually say that the blood and urine drawn actually relates to the animal. Their rules, unfortunately, say they don’t have to actually be able to demonstrate (chain of custody). They have a rule that says they’re supposed to, but if they don’t follow it, that’s OK.”
Malmstrom said his legal team twice requested DNA testing on the samples and was denied.
HISA and HIWU ultimately announced that they are not enforcing sanctions on new cases until more research is done on the effect of Metformin on horses. They said the new policy would not be retroactive, so Wong remains suspended, although he subsequently started racing horses in Louisiana, which under a separate court challenge received a stay to prevent HISA’s rules from being enforced in that state.
“If I knew what I know today back when all of this started, I probably would have just paid Jonathan to sit on the sidelines for the 18 months they originally were offering and I’d have saved hundreds of thousands of dollars,” Malmstrom said.
“… I know others have received a more favorable outcome. I don’t know how our situation is different, other than I continue to be an advocate for all the people who come behind. When you’re the first, I think they want to make an example out of us.”
