FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 06/12/2026 OSCAR NO. 615651 -PAGE Page 1 of 30 * PUBLIC *
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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 06/12/2026 OSCAR NO. 615651 -PAGE Page 1 of 30 * PUBLIC *
PUBLIC
PUBLIC
UNITED
UNITED STATES
STATES OF
OF AMERICA
AMERICA
BEFORE
BEFORE THE
THE FEDERAL
FEDERAL TRADE
TRADE COMMISSION
COMMISSION
OFFICE
OFFICE OF
OF ADMINISTRATIVE
ADMINISTRATIVE LAW
LAW JUDGES
JUDGES
ADMINISTRATIVE
ADMINISTRATIVE LAW
LAW JUDGE:
JUDGE:
Hon.
Hon. Jay
Jay L.
L. Himes
Himes
IN
IN THE
THE MATTER
MATTER OF:
OF:
JASON
JASON SCOTT,
SCOTT, DVM,
DVM,
Docket
Docket No.
No. 9449
9449
Appellant.
Appellant.
THE
THE AUTHORITY’S
AUTHORITY’S PROPOSED
PROPOSED FINDINGS
FINDINGS OF
OF FACT,
FACT, CONCLUSIONS
CONCLUSIONS OF
OF LAW,
LAW,
ORDER,
ORDER, AND
AND SUPPORTING
SUPPORTING LEGAL
LEGAL BRIEF
BRIEF
Comes
Comes now
now the
the Horseracing
Horseracing Integrity
Integrity and
and Safety
Safety Authority,
Authority, Inc.
Inc. (“HISA”
(“HISA” or
or the
the
“Authority”)
pursuant to
“Authority”) pursuant
to the
the Administrative
Administrative Law
Law Judge’s
Judge’s Order
Order Setting
Setting Briefing
Briefing Schedule,
Schedule, dated
dated
May
May 15,
15, 2026,
2026, and
and submits
submits the
the following
following Proposed
Proposed Findings
Findings of
of Fact,
Fact, Conclusions
Conclusions of
of Law,
Law, Order,
Order,
and
and Supporting
Supporting Legal
Legal Brief.
FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 06/12/2026 OSCAR NO. 615651 -PAGE Page 2 of 30 * PUBLIC *
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CERTIFICATE OF SERVICE
Pursuant to Federal Trade Commission Rules of Practice 4.2(c) and 4.4(b), a copy of
the Authority’s Proposed Findings of Fact, Conclusions of Law, Order and Supporting Legal
Brief is being served on June 12, 2026, via Administrative E-File System and by emailing a
copy to the below listed. I further certify that no portion of the filing was drafted by generative
artificial intelligence (“AI”) and any language in the filing that was drafted by generative AI
was checked for accuracy by human attorneys or paralegals using printed legal reporters or
online legal databases.
Hon. Jay L. Himes
Administrative Law Judge
Office of Administrative Law Judges
Federal Trade Commission
600 Pennsylvania Ave. NW
Washington, DC 20580
via e-mail to Oalj@ftc.gov and
electronicfilings@ftc.gov
and via hard copy to:
Clark O. Brewster
Joseph C. De Angelis
Brewster & De Angelis, PLLC
2617 East 21st Street
Tulsa, OK 74114
Phone: (918) 742-2021
Fax: (918) 742-2197
Counsel for Appellant Dr. Jason Scott
via AEFS and e-mail to
cbrewster@brewsterlaw.com and
jcdeangelis@brewsterlaw.com
Hon. Jay L. Himes
Administrative Law Judge
1 Bowling Green, Room 318
New York, NY 10004
April Tabor
Office of the Secretary
Federal Trade Commission
600 Pennsylvania Ave. NW
Washington, DC 20580
Via email: electronicfilings@ftc.gov
/s/ Bryan H. Beauman
Enforcement Counsel
FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 06/12/2026 OSCAR NO. 615651 -PAGE Page 3 of 30 * PUBLIC *
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PUBLIC
PROPOSED
PROPOSED FINDINGS
FINDINGS OF
OF FACT
FACT
A.
A. FTC
FTC Approval
Approval of
of the
the ADMC
ADMC Program
Program
1.
1.
The
The Anti-Doping
Anti-Doping and
and Medication
Medication Control
Control (“ADMC”)
(“ADMC”) Program
Program Rules
Rules were
were
published in
published
in the
the Federal
Federal Register
Register for
for public
public comment
comment on
on January
January 26,
26, 2023.
2023.! 1
2.
2.
After considering
After
considering public
public comments,
comments, the
the Federal
Federal Trade
Trade Commission
Commission (“FTC”)
(“FTC’’)
approved
approved the
the Rules
Rules on
on March
March 27,
27, 2023.
2023.7 2
3.
3.
The
with the
The FTC
FTC found
found that
that the
the Rules
Rules were
were “consistent
“consistent with
the Horseracing
Horseracing Integrity
Integrity and
and
Safety
procedural rule
by
Safety Act
Act of
of 2020
2020 (as
(as amended)
amended) and
and the
the Commission’s
Commission’s procedural
rule governing
governing submissions
submissions by
the
the Authority.”
Authority.” 3
B.
B. Jurisdiction
Jurisdiction over
over Appellant
Appellant
4.
4.
Dr.
both Covered
Dr. Jason
Jason Scott
Scott is
is aa veterinarian
veterinarian who
who treats
treats both
Covered and
and non-Covered
non-Covered Horses
Horses
at
New Mexico,
at racetracks
racetracks in
in New
Mexico, including
including Sunland
Sunland Park.
Park.4 4
5.
5.
Sunland
New Mexico
by the
New Mexico
Sunland Park
Park is
is aa racetrack
racetrack in
in New
Mexico regulated
regulated by
the New
Mexico Racing
Racing
Commission
under the
Commission and
and is
is aa Covered
Covered Racetrack
Racetrack under
the ADMC
ADMC Program.
Program.° 5
6.
6.
6
Both
Both Covered
Covered Horses
Horses and
and non-Covered
non-Covered Horses
Horses race
race at
at Sunland
Sunland Park.
Park.°®
7.
7.
HISA
Unit (“HIWU”)
jurisdiction
HISA and
and the
the Horseracing
Horseracing Integrity
Integrity &
& Welfare
Welfare Unit
(“HI'WU”) have
have jurisdiction
7
over
over Covered
Covered Persons
Persons and
and Covered
Covered Horses
Horses at
at Sunland
Sunland Park.
Park.’
C.
C. The
The Search
Search of
of Dr.
Dr. Scott
Scott on
on February
February 13,
13, 2025
2025
8.
8.
On
On February
February 13,
13, 2025,
2025, HIWU
HIWU Investigators
Investigators Brian
Brian Bennett,
Bennett, Lane
Lane Ruddick,
Ruddick, and
and Bret
Bret
1
Appeal Book
' Appeal
Book (“AB”)
(“AB”) 2796-2927
2796-2927 (Federal
(Federal Register
Register Publication).
Publication).
AB 2728-2794
AB
2728-2794 (FTC
(FTC Approval
Approval Order).
Order).
3
AB 2728-2794
Approval Order).
3 AB
2728-2794 (FTC
(FTC Approval
Order).
2
AB 5231
44 AB
5231 (Scott
(Scott Statement
Statement {¶¶ 4-6).
4-6).
5
5 AB
AB 5731:14-19
5731:14-19 (Trejo
(Trejo Testimony).
Testimony).
6
® AB
AB 5231
5231 (Scott
(Scott Statement
Statement §]¶ 5).
5).
7
7 AB
AB 5732:19-5733:10
5732:19-5733:10 (Trejo
(Trejo Testimony).
1
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Smith searched Dr. Scott’s veterinary truck at Sunland Park.8
9.
Only Covered Horses raced at Sunland Park on February 13, 2025.9
10.
The search began at approximately 7:30 AM, as HIWU Investigators did not want
to delay veterinarians like Dr. Scott on a race day.10
11.
Dr. Scott was reluctant to provide access to his veterinary truck, saying that he had
to give Lasix to a horse that was racing that day.11
12.
When Investigator Bennett mentioned that no horse was racing until 12:20 PM (and
thus the earliest Lasix could be given was 8:20 AM), Dr. Scott stated that the horse needing Lasix
was housed at Frontera Training Center.12
13.
Investigator Bennett found this reason suspect because administering Lasix to a
horse racing at Sunland Park is not permitted off-track at Frontera; however, Investigator Bennett
assured Dr. Scott that the search should only take 15-20 minutes.13
14.
During the search, Investigator Bennett found two bottles clearly labeled as Pitcher
Plant, also known as Sarapin, and placed them in evidence as BB-1 and BB-2. BB-1 was found in
the top left drawer of Dr. Scott’s veterinary cabinet. BB-2 was found inside a blue plastic tote,
which also included hypodermic needles, alcohol swabs, and other medications.14
15.
The blue plastic tote appeared to be a “go tote.”15
16.
Dr. Scott likely took the blue tote to treat Covered Horses, and he had already
treated a Covered Horse before the search.16
8
AB 5610:8-18 (Bennett Testimony).
AB 5231 (Scott Statement ¶ 7).
10
AB 5611:11-5612:4 (Bennett Testimony).
11
AB 5633:13-5634:12 (Bennett Testimony).
12
AB 5633:13-5634:12 (Bennett Testimony).
13
AB 5633:13-5634:12; 5635:2-19 (Bennett Testimony).
14
AB 5636:4-5638:14 (Bennett Testimony).
15
AB 5638:2-14 (Bennett Testimony).
16
AB 6312:9-6313:16 (Scott Testimony).
9
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17.
Dr. Scott admitted possessing the Pitcher Plant, but he stated to HIWU Investigators
that he only used it on non-Covered Quarter Horses for the treatment of “sacroiliac issues.”17
18.
Investigator Bennett also found two bottles of Adenosine Monophosphate (“AMP”)
in the top middle drawer of Dr. Scott’s veterinary cabinet and placed them in evidence as BB-3
and BB-4.18
19.
Each AMP bottle stated: “Each ml contains: 200 mg of Adenosine-5-
Monophosphoric acid in Benzyl Alcohol 1.5% as preservative.”19
20.
Dr. Scott admitted possessing the AMP, but he stated to HIWU Investigators that
he used AMP only on Quarter Horses for treatment of issues associated with “tying up.”20
D. Pitcher Plant and AMP are Banned Substances
21.
Pitcher Plant and AMP must be controlled by possession rules because neither
substance can be detected in Post-Race Testing.21
22.
Pitcher Plant is explicitly Banned at all times under ADMC Program Rule 4117.22
23.
AMP, although not explicitly named in the ADMC Program Rules, is prohibited
under Rule 4111 as an S0 Non-Approved Substance.23
24.
A substance is a Banned Substance under ADMC Program Rule 4111 when it is (i)
not otherwise listed in Rules 4112 through 4117, (ii) not approved by any governmental regulatory
health authority for veterinary or human use, and (iii) the substance is not universally recognized
by a veterinary regulatory organization as a valid veterinary use.24
17
AB 5640:2-18 (Bennett Testimony).
AB 5637:7-24 (Bennett Testimony).
19
AB 0221; 0232 (Photographs).
20
AB 5640:2-18 (Bennett Testimony).
21
AB 5830:20-5831:11 (Benson Testimony).
22
AB 1903 (HISA Banned List).
23
AB 242; 244 (Benson Report).
24
AB 242 (Benson Report).
18
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25.
The FDA withdrew any approval for AMP in 1973, and no other governmental
authority in the United States has approved AMP for veterinary or human use.25
26.
The FDA bans the importation of medications not approved in the United States.26
27.
AMP is also not universally recognized by veterinary regulatory authorities as
having a valid veterinary use.27
28.
In 2015, the FDA reiterated that AMP is “neither safe nor effective for its intended
uses as a vasodilator and an anti-inflammatory.”28
29.
Additionally, no scientific literature supports the use of AMP to treat “tying up”
(also known as rhabdomyolysis).29
30.
Rule 4111 has two exceptions: if the drug is compliant with the Animal Medicinal
Drug Use Clarification Act (“AMDUCA”); and if the drug is compliant with the FDA’s Guidance
for Industry (“GFI”) #256.30
31.
AMP is not compliant with AMDUCA because only FDA-approved medications
can be compliant with AMDUCA.31
32.
Nor did the AMP here comply with GFI #256 because:
a.
GFI #256 only applies in narrow circumstances when no other medically
appropriate treatment option exists; however, there are recognized, FDA-approved
treatments for tying up that includes FDA-approved tranquilizers and non-steroidal antiinflammatories combined with fluid therapy.32
25
AB 244-246 (Benson Report).
AB 5835:15-23 (Benson Testimony).
27
AB 246-247 (Benson Report).
28
AB 265-269 (FDA Report).
29
AB 246 (Benson Report ¶¶ 24-25); 5516 (Benson Supplemental Report ¶ 32).
30
AB 247 (Benson Report ¶ 27).
31
AB 247-248 (Benson Report ¶¶ 28-30); 5848:10-23 (Benson Testimony).
32
AB 248-251 (Benson Report ¶¶ 31-36); 5845:22-5846:16 & 5849:1-5856:5 (Benson Testimony).
26
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b.
Additionally, FDA-approved preventative medications are available for
tying up, including phenytoin and dantrolene.33
c.
The bottles did not comply with GFI #256’s labeling requirements because
they failed to state (i) the species of the patient(s) and the indication(s) for which it will be
used, (ii) contact information for the manufacturer, (iii) name and contact information for
the veterinarian ordering office stock, (iv) an FDA-required statement about reporting
suspected adverse reactions, (v) an FDA-required statement that it is a compounded drug,
(vi) an FDA-required statement that the drug cannot be used in food-producing animals,
and (vii) an FDA-required warning that restricts the drug to use by or on order of a
veterinarian.34
33.
For these reasons, AMP is a Banned Substance under ADMC Program Rule 4111.35
34.
Dr. Scott understood that both substances were Banned Substances under the
ADMC Program and could not be administered to Covered Horses.36
E. HIWU’s Notice and Dr. Scott’s Explanation to HIWU
35.
On April 30, 2025, HIWU sent Dr. Scott a Notice of Alleged Anti-Doping Rule
Violations for the Possession of Pitcher Plant and AMP at Sunland Park.37
36.
On May 21, 2025, Dr. Scott responded by letter to HIWU.38
37.
In his letter, Dr. Scott wrote that he was “clearly aware that Sarapin [Pitcher Plant]
is not to be administered to covered thoroughbred horses” and that he only used it to treat nonCovered Quarter Horses.39
33
AB 248-251 (Benson Report ¶¶ 31-36); 5849:1-5856:5 & 5872:23-5873:13 (Benson Testimony).
AB 248-251 (Benson Report ¶¶ 31-36); 5849:1-5856:5 (Benson Testimony); 7053-7059 (Related Exhibits).
35
AB 251 (Benson Report ¶ 36); 5856:7-13 (Benson Testimony).
36
AB 6314:16-6315:6 (Scott Testimony); 1938-1938.
37
AB 118 (EAD Notice).
38
AB 135-138 (Scott Letter to HIWU).
39
AB 136 (Scott Letter to HIWU).
34
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38.
Likewise, Dr. Scott wrote that in “deference to HISA rules relating to treatment of
covered thoroughbreds” he did not treat Covered Horses with AMP. Rather, Dr. Scott wrote that
he used AMP only in Quarter Horses “who exhibit acute exertion with rhabdomyolysis” and that
he kept AMP on his veterinary truck “for exigency treatment of quarter horses.”40
39.
On June 5, 2025, HIWU charged Dr. Scott with two Anti-Doping Rule Violations
for Possession of the Banned Substances Pitcher Plant and AMP.41
F. The Arbitration Hearing
40.
Dr. Scott requested a hearing before the Arbitral Body.42
41.
Before the arbitration hearing, Dr. Scott filed a federal lawsuit and sought a
preliminary injunction, which was denied.43
42.
Dr. Scott engaged in voluminous motion practice to challenge HIWU’s jurisdiction
and constitutionality, all of which were denied.44
43.
The arbitration hearing was held November 19-20, 2025.45
44.
The seat of arbitration was Sunland Park, New Mexico.46
G. Dr. Scott’s Asserted Compelling Justification at the Hearing
45.
At the hearing, Dr. Scott stated that he gave Pitcher Plant and AMP to non-Covered
Horses as part of a pre-race routine that involved giving Pitcher Plant two days before a race and
AMP one day before a race as a prophylactic measure to prevent tying up.47
46.
Dr. Scott’s prophylactic explanation at the hearing differed from his pre-hearing
40
AB 136-137 (Scott Letter to HIWU).
AB 145-150 (EAD Charge).
42
AB 7 (Initiating Letter).
43
AB 104 (Procedural Order 1); AB 5478-5500 (Order denying Preliminary Injunction).
44
AB 2721-5166 & 5398-5400 (Scott motions); 5409-5411 (Order denying motions).
45
AB 7644 (Arbitrator’s Final Decision).
46
AB 2714, ¶ 5b (Procedural Order 3).
47
AB 5232-5233 (Scott Statement ¶¶ 17, 22); 5238-5257; 6323:11-21 (Scott Testimony).
41
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explanation that he used it for “exigency treatment.”48
47.
Dr. Scott implemented a different pre-race routine that does not involve the use of
Banned Substances after the search.49
48.
Effective non-Banned medications exist to prevent and treat tying up.50
49.
In contrast to Dr. Scott, Dr. Clara Fenger, Dr. Scott’s expert witness, removed
Pitcher Plant from her veterinary truck after the HISA rules came into effect in May 2023.51
50.
Before the hearing, Dr. Scott produced redacted billing records purportedly
showing the administration of Pitcher Plant and AMP to Quarter Horses before races.52
51.
Additionally, the billing records showed that Horse 47 was administered Sarapin
(Pitcher Plant) and AMP twice on the same day, with no apparent justification.53
52.
The billing records contained no medical impressions, diagnoses, or treatment
records, and Dr. Scott did not provide any additional medical records.54
53.
The billing records reflect no medical justification for administering the Banned
Substances; the apparent justification for the administrations is that the horses were entered to
race.55
54.
At the hearing, Dr. Scott produced unredacted billing records, which were put under
a verbal confidentiality order at the arbitration.56
55.
The unredacted billing records showed 17 times when Dr. Scott administered
48
Compare AB 5232-5233 (Scott Statement ¶¶ 17, 22) with AB 137 (Scott Letter to HIWU).
AB 6344:4-20 (Scott Testimony).
50
AB 5516 (Benson Report ¶32); 5845:22-5846:16 & 5872:23-5873:13 (Benson Testimony); 6083:11-19 (Fenger
Testimony).
51
AB 6144:2-4 (Fenger Testimony).
52
AB 5238-5257 (Redacted Billing Records)
53
AB 5252; 6338:13-6339:18 (Scott Testimony).
54
AB 5238-5257; 5870:18-5871:22 (Benson Testimony).
55
AB 5871:2-5 (Benson Testimony).
56
AB 7188 ¶3(a). (Note: The discussion concerning the confidentiality order with the arbitrator appears to be part of
the JAMS hearing that was inadvertently not recorded.)
49
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phenylbutazone, commonly known as “Bute,” to Quarter Horses on the day before a race, in
violation of New Mexico Racing Commission rules and in contravention of the Association of
Racing Commissioners International (“ARCI”) Guidelines.57
56.
Dr. Scott tried to explain away the Bute administrations by stating the listed dates
must all be clerical errors.58
57.
Dr. Scott was familiar with the HISA rules and was involved in veterinarian
advocacy against the HISA rules, including as an active member of the North American
Association of Racetrack Veterinarians.59
58.
Dr. Scott also submitted a comment to the FTC about the “HISA medication rules,”
writing, “thank you for your decision to NOT approve the HISA medication rules. . .. Denying the
medication rules is the only responsible ruling the FTC should consider.”60
H. The New Mexico Racing Commission Rules on Compounded Medications
59.
In addition to HISA, the New Mexico Racing Commission prohibits veterinarian
possession of Pitcher Plant and AMP at its racetracks.61
60.
New Mexico Racing Commission Rule 15.2.6.8(B)(10) permits veterinarians to
possess and dispense compounded medications only if:
a. The medication is prescribed consistent with AMDUCA;
b. The medication meets enumerated New Mexico Board of Pharmacy Rules; and
c. The New Mexico Racing Commission’s labelling rules are followed.62
61.
Dr. Scott’s Pitcher Plant and AMP were necessarily compounded medications
57
AB 6304:13-6310:20 (Scott Testimony, noting 13 times); AB 6407:4—6408:9 (clarifying 17 times); 7112 (New
Mexico Administrative Code); 7126 (ARCI Guidelines).
58
AB 6309:11-6310:23 (Scott Testimony).
59
AB 6128:17-6129:19 (Fenger Testimony).
60
AB 7086 (Scott Comment to FTC).
61
AB 5521 (Benson Supplemental Report ¶49); 161 (NMRC Letter).
62
AB 7068 (New Mexico Administrative Code); AB 5520 (Benson Supplemental Report ¶44).
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because neither substance is available in non-compounded form in the United States.63
62.
Pitcher Plant cannot meet these requirements because:
a.
Pitcher Plant cannot be prescribed consistent with AMDUCA because it is
not a new, FDA-approved medication;
b.
Pitcher Plant cannot meet the enumerated New Mexico Board of Pharmacy
Rules because those rules do not allow for compounding of injectable drugs; and
c.
The New Mexico Racing Commission’s drug labeling rules were not
followed.64
63. AMP cannot meet these requirements because:
a. AMP cannot be prescribed consistent with AMDUCA because it is not a
new, FDA-approved medication;
b. AMP cannot meet the enumerated New Mexico Board of Pharmacy Rules
because those rules do not allow for compounding of injectable drugs; and
c. The New Mexico Racing Commission’s drug labeling rules were not
followed.65
I. The Arbitrator’s Decision
64.
On February 12, 2026, Arbitrator Hugh Hackney issued his decision, finding that
Dr. Scott possessed two “prohibited substances.”
Without analyzing Dr. Scott’s proffered
“compelling justification” defense, he imposed an 18-month period of Ineligibility, a $25,000 fine,
and payment of $5,000 in adjudication costs.66
65.
The Arbitrator backdated the period of Ineligibility to the date of the search
63
AB 5839:12-5840:8 (Benson Testimony).
AB 5865:19-5868:7 (Benson Testimony); 5519-5521 (Benson Supplemental Report ¶¶ 41-49).
65
AB 5861:11-5863:6 (Benson Testimony); 5519-5521 (Benson Supplemental Report ¶¶ 41-49).
66
AB 7644-7678 (Arbitrator’s Final Decision).
64
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(February 13, 2025) but gave no reason and cited no ADMC Program Rule to justify backdating.67
PROPOSED CONCLUSIONS OF LAW
1.
The FTC lawfully approved the ADMC Program Rules, including Rules 3214(a),
4111, and 4117(e).68
2.
Rule 3214(a), the Possession rule, is not void for vagueness.69
3.
The Authority’s final civil sanction is subject to de novo review by an
Administrative Law Judge.70
4.
The ALJ may “affirm, reverse, modify, set aside, or remand for further proceedings,
in whole or in part the final civil sanction of the Authority,” and “make any finding or conclusion
that, in the judgment of the [ALJ], is proper and based on the record.”71
5.
Pitcher Plant is an S6 Banned Substance under Rule 4117(e).
6.
AMP is an S0 Banned Substance under Rule 4111.
7.
Dr. Scott Possessed two Banned Substances—Pitcher Plant and AMP—found by
HIWU Investigators in his veterinary truck on February 13, 2025 at Sunland Park Racetrack in
New Mexico.72
8.
Dr. Scott has the burden to establish a “compelling justification” for each of the
two charged Possession Anti-Doping Rule Violations (“ADRVs”) by a preponderance of the
evidence.73
67
AB 7644-7678 (Arbitrator’s Final Decision).
AB 2728-2794 (FTC Approval Order).
69
See Scott v. Horseracing Integrity & Safety Auth., No. 2:25-cv-632, 2025 WL 2987598, at *23-24 (D.N.M. Oct. 22,
2025); In the Matter of Dr. Scott Shell, DVM (“Shell II”), FTC Docket No. 9439 (March 6, 2025) at 40-42.
70
15 U.S.C. §3058(b)(1).
71
15 U.S.C. §3058(b)(3)(A)(ii), (iii).
72
ADMC Program Rule 3214(a).
73
See In the Matter of Larry Rickman Overly, FTC Docket No. 9443 (Jan. 27, 2026) at 11-12.
68
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9.
A compelling justification cannot be established by the desire to use Banned
Substances for non-exigent, routine, pre-race administration in non-Covered Horses.74
10.
In any event, Dr. Scott failed to meet his burden to prove a compelling justification
given his conflicting explanations, the lack of reliability in his billing records that he produced,
and the New Mexico Racing Commission’s prohibition against veterinary possession of
compounded medications like the two at issue—AMP and Pitcher Plant.75
11.
Since Dr. Scott has no compelling justification for either of the Possession ADRVs
charged, he has committed two Possession ADRVs.76
12.
Dr. Scott failed to establish No Fault or Negligence or No Significant Fault or
Negligence for either of the ADRVs.77
13.
The default sanction for each ADRV is 2-years Ineligibility and a $25,000 fine.78
14.
The periods of Ineligibility for each ADRV run consecutively unless
proportionality applies.79
15.
The proportionality principle should only be applied exceptionally and restrictively
to reduce the global Consequences that would otherwise apply pursuant to the ADMC Program; it
should not become the norm.80
16.
A period of Ineligibility can be backdated only when there has been a “substantial
delay in the adjudication process or other aspects of Doping Control that go well beyond the
74
See Overly at 49-53, 72; Shell II at 16, 23-34; In the Matter of Dr. Donald McCrosky, FTC Docket No. 9448 (June
2, 2026) at 16-17.
75
ADMC Program Rule 3214(a).
76
ADMC Program Rule 3214(a); Shell II at 48.
77
ADMC Program Rules 1020, 3224, & 3225.
78
ADMC Program Rule 3223(b).
79
See Overly at 92.
80
Id.
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standard timeframes for Laboratory analyses and Results Management, and the Covered Person
can establish that such delays are not attributable to him[.]”81
17.
Dr. Scott did not establish (or even attempt to establish) any period of “substantial
delay” that went “well beyond” standard timeframes that were not attributable to him. Thus, there
is no legal basis to backdate Dr. Scott’s period of Ineligibility.82
18.
The Arbitrator therefore erred in finding that an 18-month period of Ineligibility,
backdated to the date of the search, was an appropriate sanction.83
19.
The Arbitrator appropriately ordered Dr. Scott to pay some of the arbitration
20.
More appropriately, the following Consequences should be imposed:
costs.84
a.
2-years Ineligibility for each ADRV, to be served consecutively and without
backdating;
b.
A $25,000 fine for each ADRV; and
c.
A contribution of $5,000 toward the arbitration costs.
81
ADMC Program Rule 3223(c)(3).
ADMC Program Rule 3223(c)(3).
83
15 U.S.C. §3058(b)(2)(A)(iii); 16 CFR §1.146(b)(3).
84
The Arbitrator ordered $5,000 in arbitration costs, which is at the low end of arbitration costs upheld in other cases.
See In the Matter of Eusebio Juarez-Rufino, FTC Docket No. 9444 (Apr. 28, 2026) at 56 ($8,000); Overly at 94
($15,000 in costs); In the Matter of Dr. Scott Shell (“Shell I”), FTC Docket No. 9435 (Oct. 31, 2024) at 44 ($10,000
in costs); In the Matter of Jim Iree Lewis, FTC Docket No. 9434 (Oct. 17, 2024) at 16-17 ($5,000 in costs); In the
Matter of Jeffrey Poole, FTC Docket No. 9417 (Nov. 13, 2023) at 10 ($8,000 in costs).
82
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PUBLIC
PROPOSED
PROPOSED ORDER
ORDER
Based
Based on
on the
the foregoing
foregoing findings
findings of
of fact
fact and
and conclusions
conclusions of
of law,
law, incorporated
incorporated herein,
herein, the
the
undersigned Administrative
undersigned
Administrative Law
Law Judge
Judge ORDERS
ORDERS AND
AND ADJUDGES
ADJUDGES that:
that:
a.
justification for
a. Appellant
Appellant failed
failed to
to establish
establish aa compelling
compelling justification
for Possessing
Possessing Pitcher
Pitcher
Plant
Plant or
or AMP;
AMP;
b.b. Appellant
Appellant committed
committed two
two Possession
Possession ADRVs,
ADRVs, for
for which
which he
he will
will receive
receive
separate
separate and
and consecutive
consecutive sanctions;
sanctions;
c.
No Fault
Negligence;
c. Appellant
Appellant is
is not
not entitled
entitled to
to aa finding
finding of
of No
Fault or
or Negligence;
d.
No Significant
Negligence;
d. Appellant
Appellant is
is not
not entitled
entitled to
to aa finding
finding of
of No
Significant Fault
Fault or
or Negligence;
e.
period of
be imposed
e. The
The period
of Ineligibility
Ineligibility to
to be
imposed shall
shall be
be 48
48 months,
months, with
with credit
credit for
for 69
69
days
days of
of Ineligibility
Ineligibility served
served between
between the
the Arbitrator’s
Arbitrator’s Final
Final Decision
Decision on
on February
February
12,
12, 2026,
2026, and
and the
the stay
stay of
of sanctions
sanctions on
on April
April 22,
22, 2026;
2026;
f.
period of
be backdated;
f. The
The period
of Ineligibility
Ineligibility shall
shall not
not be
backdated;
g.
will be
g. The
The fine
fine will
be increased
increased to
to $50,000;
$50,000; and
and
h.
h. Appellant
Appellant will
will continue
continue to
to pay
pay $5,000
$5,000 towards
towards HIWU’s
HIWU’s arbitration
arbitration costs.
costs.
13
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SUPPORTING LEGAL BRIEF
I.
Introduction
Dr. Jason Scott possessed multiple bottles of two Banned Substances—Pitcher Plant and
AMP—at a Covered Racetrack on a day when only Covered Horses were racing. He does not
dispute that he possessed the two Banned Substances.85 Rather, he claims he had a “compelling
justification,” when in reality he did not. What began as an asserted need for “exigency” treatment
became, by the hearing, a claim that Pitcher Plant and AMP had to be Possessed because he had a
pre-race prophylactic regimen for treating non-Covered Quarter Horses. No matter how you slice
it, Dr. Scott did not meet his burden. Thus, the Arbitrator was correct in finding that Dr. Scott
committed two Possession ADRVs, though incorrect in ordering an 18-month combined backdated
period of Ineligibility. Proportionality should not apply here, and the period of Ineligibility cannot
be backdated since Dr. Scott did not establish (or even attempt to establish) any period of
“substantial delay” that went “well beyond” standard timeframes that were not attributable to him.
Dr. Scott airs many claimed grievances in his appeal, but all are without merit. First, he
argues that HIWU had no jurisdiction over him. HIWU, however, plainly had jurisdiction over
him as a Covered Person possessing Banned Substances at a Covered Racetrack on a day where
Covered Horses were racing. Next, he argues that he had a compelling justification to possess
both Banned Substances. But he does so without producing any of the “powerful and convincing”
evidence required to show a compelling justification existed. On top of his shifting and conflicting
explanations, Dr. Scott tried to rely on billing records—devoid of treatment rationales—that
showed he repeatedly administered another medication to Quarter Horses in violation of New
85
See Appellant’s Application for Review at p. 1.
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Mexico Racing Commission rules. And his claimed “prophylactic” justification for his on-track
treatment of non-Covered Horses would swallow the exception whole if permitted to stand.
Finally, Dr. Scott makes a series of assertions about rulemaking and constitutional
challenges that get him nowhere. Plain and simple, the FTC lawfully approved the ADMC
Program Rules. Dr. Scott’s vagueness challenge to the Possession rule has been repeatedly
rejected—including in federal court in his own case. And his non-delegation arguments likewise
fail for the same reason they have failed elsewhere: HISA and HIWU operate under the FTC’s
continuing oversight and control.
Again, the real error in this case is the sanction issued by the Arbitrator. Dr. Scott
committed two Possession ADRVs, each of which carries a default sanction of two years
Ineligibility and a $25,000 fine, yet the Arbitrator imposed reduced and backdated Consequences
without a legal basis for doing so. On de novo review, the ALJ should reject Dr. Scott’s arguments,
affirm both Possession ADRVs, and impose Consequences consistent with the ADMC Program
Rules.
II.
Standard of Review
Upon application for review, an Administrative Law Judge “must determine”:
(1) Whether the person has engaged in such acts or practices, or has omitted such
acts or practices, as the Authority has found the person to have engaged in or
omitted. In making this determination, the Administrative Law Judge may rely on
the factual record developed before the Authority and may supplement that record
by evidence presented in an administrative hearing under paragraph (c) of this
section;
(2) Whether such acts, practices, or omissions are in violation of the Horseracing
Integrity and Safety Act, 15 U.S.C. 3051 through 3060, or the rules of the Authority
as approved by the Commission. The Administrative Law Judge will make this
determination de novo; and
(3) Whether the final civil sanction of the Authority was arbitrary, capricious, an
abuse of discretion, prejudicial, the result of a conflict of interest, or otherwise not
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in accordance with law. The Administrative Law Judge will make this
determination de novo.86
An arbitrator’s decision is arbitrary and capricious if there is no “rational connection
between facts and judgment.”87 An arbitrator commits an abuse of discretion if the ALJ finds “a
plain error, discretion exercised to an end not justified by the evidence, [or] a judgment that is
clearly against the logic and effect of the facts as are found.”88 And, to determine if an arbitrator’s
sanctions are in accordance with the law, the ALJ looks “to the substantive law embodied in HISA
and the implementing Rules[.]”89
III.
Response to Dr. Scott’s Grounds for Appeal
Dr. Scott raised five issues on appeal: (1) that HIWU has no jurisdiction over him; (2) that
he had a compelling justification to possess the Banned Substances; (3) that the FTC improperly
adopted some of the ADMC Program Rules, and that the Horseracing Integrity and Safety Act of
2020 (“Act”) unconstitutionally delegates (4) legislative and (5) executive power to HISA and
HIWU. All his arguments lack merit and should be rejected.
A.
HIWU Had Jurisdiction Over Dr. Scott as a Covered Person
Dr. Scott is a Covered Person who treats Covered Horses at Sunland Park Racetrack, a
Covered Racetrack in New Mexico.90 On the day HIWU Investigators searched his truck at
Sunland Park, only Covered Horses were racing.91 Despite all evidence to the contrary, Dr. Scott
86
16 CFR §1.146(b) (emphasis added).
See Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 56 (1983); Overly at 21.
88
Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 422 F.3d 782, 798 (9th Cir. 2005) (internal citations omitted);
Overly at 21-22.
89
Overly at 22.
90
Proposed Finding of Fact (“PFOF”) #4-5; see 15 U.S.C. §§3051(4), (6), (21); Rule 1020 (definitions of “Covered
Horse,” “Covered Person,” and “Veterinarian”). Covered Racetrack, as used here, is a racetrack under HISA’s
jurisdiction where Covered Horseraces occur. 15 U.S.C. §§3051(5); Rule 1020 (definition of “Covered Horserace”).
91
PFOF #9.
87
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contends without basis that HIWU lacked subject-matter jurisdiction to pursue a Possession case
against him.
Notwithstanding his claim, HISA and HIWU have express statutory authority over Dr.
Scott as a Covered Person. Under the Act, jurisdiction extends to “all horseracing safety,
performance, and anti-doping and medication control matters for covered horses, covered persons,
and covered horseraces[.]”92 No dispute exists that Dr. Scott is a Covered Person. As the ALJ found
in In the Matter of Luis Jorge Perez, when “it is undisputed that Appellant is a Covered Person
treating racehorses” then “the Authority and HIWU have jurisdiction over Appellant and he is
subject to ADMC Rule 3214.”93 Because Dr. Scott—a Covered Person—possessed Banned
Substances at a Covered Racetrack on a day of Covered Horseraces, HIWU had jurisdiction to
bring charges against him.
B.
Dr. Scott Failed to Prove He Had a Compelling Justification to Possess Banned
Substances
Dr. Scott does not dispute that he possessed Pitcher Plant and AMP at Sunland Park.94
Rather, he asserts that he had a “compelling justification” to possess the Banned Substances
because he used them on non-Covered Quarter Horses. Dr. Scott did not meet his burden to prove
a compelling justification—nor can he, given that possession of these Banned Substances is also
prohibited by the New Mexico Racing Commission’s compounding rule.
The compelling justification defense is “fact driven and thus case-specific.”95 Compelling
justification is the “exception” and to be “interpreted restrictively.”96 The “scenarios where the
‘compelling justification’ exemption applies will be a small minority.”97 Generally, those scenarios
92
15 U.S.C. § 3054(a)(2)(B).
In the Matter of Luis Jorge Perez, FTC Docket No. 9420 (Feb. 7, 2024) at 9.
94
PFOF #17, 20.
95
Shell II at 16.
96
Id. (internal citations and quotations omitted).
97
Scott, No. 2:25-cv-632, 2025 WL 2987598, at *24.
93
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will involve emergency situations.98 Dr. Scott must have a compelling justification to carry the
Banned Substance on that specific date, time, and location, as “practice convenience . . . does not
equate to compelling justification.”99 Having a non-Covered Horse practice is, standing alone,
insufficient as a compelling justification.100
First, Dr. Scott’s claim of compelling justification fails because he offered fundamentally
inconsistent explanations for why he possessed the Banned Substances. During the search, Dr.
Scott told HIWU investigators he possessed Pitcher Plant for “sacroiliac issues” and AMP for the
treatment of “tying up” (rhabdomyolysis).101 Dr. Scott then asserted in a May 2025 letter that he
carried Pitcher Plant for “soft tissue or osseous problems” and AMP “exclusively for quarter horses
who exhibit acute exertion with rhabdomyolysis” and that the medication was on his truck for the
“exigency treatment of quarter horses.”102 Yet, at the hearing, Dr. Scott abandoned his exigent
treatment claim and instead tried to justify his Possession of the Banned Substances for routine,
prophylactic, pre-race use on Quarter Horses to prevent rhabdomyolysis.103 Moreover, his billing
records showed that he gave it to horses only as part of a pre-race regimen.104 Dr. Scott’s shifting
explanation misses the mark and falls far short of the “powerful and convincing” evidence the
compelling justification exception demands.105
Second, a veterinarian’s asserted need to carry Banned Substances at a Covered Racetrack
in and around Covered Horses for prophylactic use on non-Covered Horses as part of a routine
98
Overly at 72 (noting neither Banned Substance possessed by a veterinarian was needed to treat emergency or exigent
conditions); McCrosky at 15 (finding no evidence that Banned Substances in veterinarian’s van were needed to treat
an emergency or otherwise urgent condition).
99
See McCrosky at 16.
100
See Id.; Shell II at 16; Perez at 9; Overly at 51-60.
101
PFOF #17, 20.
102
PFOF #36-39.
103
PFOF #45-56.
104
PFOF #50.
105
See Shell II at 15.
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and non-exigent pre-race treatment program is an exception that would swallow the rule. The only
basis for treating the Quarter Horses with Banned Substances was that the horses were racing.106
Thus, this is not the “small minority” of cases: if accepted, veterinarians could carry Banned
Substances with impunity at a Covered Racetrack by simply claiming it was routine to give those
Banned Substances to non-Covered Horses. Permitting this routine Possession “would so dilute
Rule 3214(a)’s compelling justification requirement as to render Possession charges against a
veterinarian with a non-Covered Horse practice effectively illusory.”107 Further, Dr. Scott’s
purported compelling justification is undercut by the fact that, since the search, he has adopted a
new routine that utilizes non-Banned Substances and has demonstrated that non-Banned
medications are available to effectively prevent and treat rhabdomyolysis.108
Third, Dr. Scott failed to put forth credible evidence in the form of complete veterinary
records establishing his need to carry these Banned Substances for a specific horse’s medical
treatment. Other cases have cautioned that records of medical examination and treatment, not
simply billing records, are required.109 In Shell II, for example, the ALJ rejected a veterinarian’s
purported compelling justification for possessing Pitcher Plant and other Banned Substances when
the veterinarian offered records that did not contain “any examination findings or differential
diagnoses, making them deficient as medical records, and akin to billing records.”110 Yet Dr. Scott
produced redacted billing records as evidence in this case that contained no information about a
horse’s medical health, diagnosis, or assessments.111
106
PFOF #53.
Shell II at 34.
108
PFOF #49.
109
See Shell II at 25; Overly at 46-47 (noting veterinary recordkeeping requirements under state law and HISA
“regardless of billing”).
110
Shell II at 31.
111
PFOF #53.
107
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Moreover, Dr. Scott’s unredacted billing records—produced for the first time midhearing—showed evidence of multiple treatment issues and medication rule violations.112 One
horse, for instance, received two doses of Pitcher Plant and two doses of AMP on the same day
without any therapeutic explanation.113 And the records showed that Dr. Scott had given Bute on
the day before non-Covered races on at least 17 occasions, which is expressly prohibited by New
Mexico Racing Commission Rules and the ARCI guidelines.114 Even accepting Dr. Scott’s claim
that these were “clerical errors,”115 the records are still unreliable. If these were not clerical errors
as claimed, the billing records show repeated New Mexico Racing Commission medication
violations that were covered up with redactions. Either way, the billing records are not credible
evidence to justify Dr. Scott’s possession of two Banned Substances.
One more independent reason forecloses a compelling justification argument: the New
Mexico Racing Commission also prohibited him from possessing these substances at Sunland
Park.116 New Mexico Racing Commission Rule 15.2.6.8(b)(10) permits a veterinarian to possess
compounded medications at a Commission-regulated racetrack only if three conditions are met:
(a) the medication must be prepared and prescribed consistent with AMDUCA; (b) the medication
must comply with the applicable New Mexico Board of Pharmacy Requirements; and (c) it must
satisfy the Commission’s labeling requirements.117 Pitcher Plant and AMP are compounded
substances,118 and neither satisfies any of those three requirements.119 Most importantly, neither
112
PFOF #54-55.
PFOF #51.
114
PFOF #55.
115
PFOF #56.
116
N.M. Admin. Code §15.2.6.8(10).
117
Id.; PFOF #59-60.
118
PFOF #61.
119
PFOF #62-63. In addition, neither substance complied with section (b) because the state rules do not allow for
compounding of injectable drugs, or section (c) because the drug labeling rules were not followed. PFOF #62-63.
113
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substance can satisfy AMDUCA because neither is FDA approved.120 So under New Mexico law,
Dr. Scott could not lawfully possess either substance at Sunland Park. A veterinarian cannot
establish a “compelling justification” for possessing a Banned Substance at a Covered Racetrack
when state racing rules independently prohibit that possession.
As Dr. Scott failed to satisfy his burden to prove by a preponderance of the evidence a
compelling justification for carrying the Banned Substances, Dr. Scott committed two ADRVs
under Rule 3214(a).
C. The ADMC Program Rules are Not Void, and Similar Arguments Have Been
Repeatedly Rejected
Dr. Scott makes several attacks on the rulemaking process for the ADMC Program Rules
that fail procedurally and substantively. He argues unavailingly that ADMC Program Rules
3214(a), 4111, and 4117(e) are void because of alleged defects in the rulemaking process and
because the FTC’s adoption of the rules was arbitrary and capricious. He separately argues
unconvincingly that Rule 3214(a) is unconstitutionally vague.
To start, Dr. Scott’s general challenge to the FTC’s rulemaking process, and his facial claim
that the FTC acted arbitrarily and capriciously in adopting these Rules, falls outside the scope of
review here.121
In any event, the FTC approved the ADMC Program Rules following all
appropriate rulemaking procedures.122 Additionally, Rule 3214(a) is not unconstitutionally vague.
Indeed, a federal district court has already rejected that very argument in this case.123 Rule 3214(a)
leaves “scant room for confusion over what can and cannot be possessed,” and a veterinarian “can
120
PFOF #62-63.
See 15 U.S.C. §3058(b)(2)(A); 16 CFR § 1.146(b); Shell I at 35 (“Dr. Shell’s contention that HISA Rule 4111 is
itself arbitrary and capricious is not grounds for review under either 15 U.S.C. § 3058(b)(2)(A) or FTC Rule
1.146(b)(1)-(3)”).
122
PFOF #1-3.
123
See Scott, No. 2:25-cv-632, 2025 WL 2987598, at *23-24.
121
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always comply with Rule 3214 by not possessing the substances it prohibits.”124 Other ALJ
decisions have reached the same conclusion.125 Accordingly, Dr. Scott’s challenges to the ADMC
Program Rules’ validity are procedurally improper and without merit.
D.
The Act is Not an Unconstitutional Delegation of Legislative or Executive
Power
Dr. Scott last argues that the Act is an unconstitutional delegation of legislative and
executive power to a private agency. His tired arguments have been repeatedly litigated and
rejected because the FTC has full authority to control both the rulemaking and enforcement
functions.126 Dr. Scott cites to FCC v. Consumers’ Research to argue otherwise.127 But Oklahoma
v. United States directly addressed Consumers Research and rejected the same argument Dr. Scott
makes on both counts. While HISA can propose rules, the FTC “has the final say” to review,
modify, abrogate, or add rules.128 Likewise, HISA and HIWU’s enforcement actions are “‘subject
to the FTC’s pervasive surveillance and authority,’ making [HIWU] ‘an aid’ to the FTC, not its
choreographer.”129 Indeed, no sanction can go into final effect “without the FTC’s say-so.”130 For
these well-explained reasons, Dr. Scott’s constitutional challenge fails on the merits.
IV.
The Arbitrator Erred in Imposing Consequences
The default sanction for Dr. Scott is a 2-year period of Ineligibility and a $25,000 fine per
violation for each Possession ADRV. The Arbitrator imposed, without explanation, an 18-month
period of Ineligibility backdated to the date of the search (February 13, 2025), a $25,000 fine, and
124
Id.
See Perez at 8; Shell II at 40-42.
126
See Oklahoma v. United States, 163 F.4th 294, 308-16 (6th Cir. 2025); Walmsley v. FTC, 117 F.4th 1032, 1038-40
(8th Cir. 2024); Shell II at 44.
127
FCC v. Consumers’ Rsch., 606 U.S. 656 (2025).
128
Oklahoma at 308.
129
Id. at 311 (internal citations omitted).
130
Id.
125
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a $5,000 contribution toward arbitration costs.131 These sanctions—which included a 30-month
deviation from the default sanctions without explanation plus 9 more months of backdating—were
arbitrary, capricious, and not in accordance with the law. On de novo review, compliance with the
ADMC Program Rules requires that the ALJ modify these Consequences.132
To start, the record does not support backdating. Indeed, Dr. Scott never even requested
backdating.133 Under Rule 3223(c)(3), a period of Ineligibility can be backdated only when there
has been a “substantial delay in the adjudication process or other aspects of Doping Control that
go well beyond the standard timeframes for Laboratory analyses and Results Management, and
the Covered Person can establish that such delays are not attributable to him[.]”134 Dr. Scott never
requested backdating, let alone established substantial delays that were not attributable to him.
Nor could he. Dr. Scott went to federal court seeking an injunction to stop the arbitration from
occurring.135 And he engaged in voluminous motion practice, filing hundreds of pages of pre-trial
motions.136 On this record, backdating is wholly inappropriate under Rule 3223(c)(3).
Additionally, Dr. Scott has not shown he is entitled to any reduction from the default 2year periods of Ineligibility, which should run consecutively.137 Dr. Scott possessed two substances
that he knew were Banned at a Covered Racetrack on a day of only Covered Horseraces. He, in
fact, treated a Covered Horse right before the search.138 Dr. Scott made no effort to reach out to
HIWU to discuss the mixed nature of his practice or his purported need to carry both Banned
Substances. Instead, Dr. Scott just assumed (incorrectly) that he could carry Banned Substances
131
PFOF #64-65.
15 U.S.C.§ 3058(b)(1); 16 CFR § 1.146(b)(3); Overly at 66.
133
See generally Dr. Scott’s Pre-Hearing Brief, AB 5193-5226.
134
ADMC Rule 3223(c)(3).
135
PFOF #41; Scott, No. 2:25-cv-632, 2025 WL 2987598, at *1.
136
PFOF #42.
137
See Overly at 92.
138
PFOF #16.
132
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with impunity. Plus, as described below, Dr. Scott is not entitled to a reduction for No Fault or
Negligence or No Significant Fault or Negligence, and a reduction under the principle of
proportionality is not appropriate under the circumstances here.
A. Dr. Scott is Not Entitled to a Finding of No Fault or Negligence
Dr. Scott is not entitled to a finding of No Fault or Negligence under Rule 3224. This case
is not one of “exceptional circumstances.” 139 To establish No Fault, he must show that even with
the exercise of “utmost caution,” he could not have reasonably known or suspected he was
committing an ADRV.140 Dr. Scott did not exercise the “utmost caution.” He knew that both
substances were banned for use in Covered Horses,141 yet he made no effort to even discuss this
issue with HIWU or change his veterinary practices. He carried multiple bottles of each Banned
Substance with him, including in a blue “go tote” that he could quickly grab from his truck and
take to a horse.142 Like the circumstances in Shell II—which included possession of Pitcher
Plant—the substances here were not FDA-approved, were not needed for urgent or emergency use,
and were not essential to treat non-Covered Horses as non-Banned alternatives were available.143
Under these circumstances, he is not entitled to a finding of No Fault or Negligence.
B. Dr. Scott is Not Entitled to a Finding of No Significant Fault or Negligence
Dr. Scott is also not entitled to a reduction under Rule 3225 for No Significant Fault or
Negligence. To obtain a reduction, Dr. Scott must show that his “fault or negligence, when viewed
in the totality of the circumstances and taking into account the criteria for No Fault or Negligence,
139
ADMC Program Rule 3224(b).
ADMC Program Rule 1020 (definition of No Fault or Negligence).
141
PFOF #34.
142
PFOF #14-16, 18.
143
See Shell II at 59.
140
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was not significant in relationship to the Anti-Doping Rule Violation.”144 HIWU cases have
adopted the Cilic v. ITF analysis, which considers both objective and subjective elements of fault:
The objective element describes what standard of care could have been expected
from a reasonable person in the athlete’s situation. The subjective element describes
what could have been expected from that particular athlete, in light of his personal
capacities.145
Dr. Scott’s actions are remarkably similar to those of Dr. Shell and Dr. Overly—both of
whom were not entitled to a finding of No Significant Fault. Objectively, Dr. Scott did not take
the actions a reasonable veterinarian would take—or even the actions that his own expert witness
took146—to remove the Banned Substances from his truck once the HISA regulations were in place.
He carried multiple bottles of the Banned Substances, none of which had the legally required labels
(under both federal and New Mexico law), or even noted that the substances could only be used
on non-Covered Horses.147
Subjectively, Dr. Scott fares no better. Indeed, he seems to have taken no steps at all to
adjust his practice after the HISA regulations went into effect despite knowing the substances were
Banned Substances. Moreover, the substances had no emergency use and were also prohibited by
the New Mexico Racing Commission.148 These circumstances are strikingly similar to Dr. Shell’s,
who possessed Pitcher Plant even though it was banned at the racetrack, was not FDA-approved,
and “there are multiple FDA-approved alternatives.”149 So too with AMP, which is “neither safe
nor effective” according to the FDA and had its approval withdrawn in the 1970s.150
144
ADMC Program Rule 1020 (definition of No Significant Fault).
Cilic v. ITF, CAS 2013/A/3327 at ¶ 71 (Apr. 11, 2014); see also HIWU v. Poole, JAMS Case No. 1501000576, at
¶¶ 7.16-7.20 (Aug. 8, 2023) (adopting Cilic analysis); Shell II at 61 (adopting analysis).
146
PFOF #49.
147
PFOF #14-19; 32; 62-63.
148
PFOF #59-63.
149
Shell II at 67-68 (rejecting No Significant Fault as to Dr. Shell’s possession of pitcher plant).
150
PFOF #25; 28.
145
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Finally, Dr. Scott was well-versed in the HISA regulations. He is active in the North
American Association of Racetrack Veterinarians and submitted comments to the FTC on the
“HISA medication rules.”151 This case is not one where the Covered Person was ill-informed of
the rules. To the contrary, Dr. Scott was heavily involved in reviewing and commenting on the
rules. However much Dr. Scott may disagree with the ADMC Program Rules, he knew what they
required of him.
Under the totality of the circumstances, this case is not an “exceptional” one warranting a
reduction for No Significant Fault.
C. No Reduction for Proportionality is Appropriate Here
Finally, Dr. Scott is not entitled to have his sanction treated as a single sanction under the
principle of proportionality. Proportionality is “a case law-derived exception” that “should not
become the norm.”152 Here, Dr. Scott possessed multiple bottles of both Banned Substances at a
Covered Racetrack on a day of Covered Horseraces. He had Pitcher Plant in a blue “go tote” and
had already treated a Covered Horse that morning.153 This case is not like Shell II, where four
consecutive Ineligibility periods would be “tantamount to permanent expulsion.”154 Rather, like
Overly, Dr. Scott faces two consecutive Ineligibility periods and is not in the “sunset” of his career.
In addition, Dr. Scott’s “lack of candor” matters.155 Here, Dr. Scott gave contradictory
explanations to HIWU to try and prove a compelling justification. Before he was charged and had
provided any records, he asserted he needed AMP for “exigent” circumstances.156 But at the
hearing, it became clear he used both Banned Substances as part of a routine, pre-race regimen.157
151
PFOF #57-58.
Overly at 64.
153
PFOF #16.
154
Shell II at 50.
155
Overly at 65.
156
PFOF #38.
157
PFOF #45-46.
152
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Likewise,
until mid-hearing,
Likewise, Dr.
Dr. Scott
Scott produced
produced only
only redacted
redacted billing
billing records
records to
to HIWU;
HIWU; it
it was
was not
not until
mid-hearing,
158
right
before he
unredacted copies.
The
right before
he testified,
testified, that
that HIWU
HIWU received
received unredacted
copies.'°®
The reason
reason for
for the
the redactions,
redactions,
purportedly to
patient privacy,
privacy, became
purportedly
to protect
protect patient
became clear
clear once
once revealed:
revealed: the
the records
records showed
showed Dr.
Dr. Scott
Scott
had
had given
given Bute
Bute 17
17 times
times to
to horses
horses within
within 24
24 hours
hours of
of the
the race,
race, in
in violation
violation of
of New
New Mexico
Mexico Racing
Racing
159
Commission
not entitled
reduction.
Commission rules.
rules.!*? Given
Given Dr.
Dr. Scott’s
Scott’s lack
lack of
of candor,
candor, he
he is
is not
entitled to
to any
any reduction.
V.
V.
Conclusion
Conclusion
Dr.
Dr. Scott
Scott committed
committed two
two Possession
Possession ADRVs.
ADRVs.
His
jurisdictional and
His jurisdictional
and constitutional
constitutional
arguments
arguments are
are without
without merit.
merit. The
The only
only error
error here
here was
was how
how the
the Arbitrator
Arbitrator imposed
imposed Consequences.
Consequences.
Accordingly,
Accordingly, the
the ALJ
ALJ should
should uphold
uphold the
the finding
finding that
that Dr.
Dr. Scott
Scott committed
committed two
two Possession
Possession ADRVs
ADRVs
and
periods of
and impose
impose consecutive
consecutive 2-year
2-year periods
of Ineligibility
Ineligibility and
and aa $25,000
$25,000 fine
fine for
for each
each offense
offense (4-years
(4-years
of
of Ineligibility
Ineligibility and
and aa $50,000
$50,000 fine),
fine), that
that are
are not
not backdated,
backdated, plus
plus appropriate
appropriate arbitration
arbitration costs.
costs.
ALL
ALL OF
OF WHICH
WHICH IS
IS RESPECTFULLY
RESPECTFULLY SUBMITTED
SUBMITTED THIS
THIS 12th
12th day
day of
of June,
June, 2026.
2026.
/s/Bryan
H. Beauman
Beauman
/s/Bryan H.
BRYAN
BRYAN BEAUMAN
BEAUMAN
REBECCA
REBECCA PRICE
PRICE
333
333 W.
W. Vine
Vine Street,
Street, Suite
Suite 1500
1500
Lexington,
Kentucky
40507
Lexington, Kentucky 40507
Telephone:
Telephone: (859)
(859) 255-8581
255-8581
bbeauman@sturgillturner.com
bbeauman@sturgillturner.com
rprice@sturgillturner.com
rprice@stureillturner.com
HISA
HISA ENFORCEMENT
ENFORCEMENT COUNSEL
COUNSEL
158
158 PFOF
PFOF #54.
#54.
159 PFOF
PFOF #55.
#55.
159
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PUBLIC
MICHELLE
MICHELLE C.
C. PUJALS
PUJALS
ALLISON
J.
FARRELL
ALLISON J. FARRELL
4801
4801 Main
Main Street,
Street, Suite
Suite 350
350
Kansas
Kansas City,
City, MO
MO 64112
64112
Telephone:
Telephone: (816)
(816) 602-0945
602-0945
mpujals@hiwu.org
mpujals@hiwu.org
afarrell@hiwu.org
afarrell@hiwu.org
HORSERACING
HORSERACING INTEGRITY
INTEGRITY &
&
WELFARE
WELFARE UNIT,
UNIT, A
A DIVISION
DIVISION OF
OF
DRUG
FREE
SPORT
LLC
DRUG FREE SPORT LLC
PAUL
PAUL J.
J. GREENE
GREENE
RYAN
RYAN LIPES
LIPES
254
254 Commercial
Commercial Street,
Street, Suite
Suite 245
245
Portland,
Portland, Maine
Maine 04101
04101
Telephone:
Telephone: (207)
(207) 747-5899
747-5899
pgreene@globalsportsadvocates.com
pgreene@globalsportsadvocates.com
rlipes@globalsportsadvocates.com
rlipes@globalsportsadvocates.com
GLOBAL
GLOBAL SPORTS
SPORTS ADVOCATES
ADVOCATES
28
28
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.