FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 12/15/2025 OSCAR NO. 614479 -PAGE Page 1 of 28 PUBLIC

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FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 12/15/2025 OSCAR NO. 614479 -PAGE Page 1 of 28 *PUBLIC *

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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

FTC

FTC DOCKET

DOCKET NO.

NO. D-9443

D-9443

ADMINISTRATIVE

ADMINISTRATIVE LAW

LAW JUDGE:

JUDGE:

HON.

HON. JAY

JAY L.

L. HIMES

HIMES

IN THE

THE MATTER

MATTER OF:

OF:

DR.

DR. LARRY

LARRY OVERLY,

OVERLY, DVM

DVM

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”)

“Authority”) pursuant

pursuant to

to the

the Administrative

Administrative Law

Law Judge’s

Judge’s Order

Order on

on Application

Application for

for Review

Review and

and

Application

Application for

for Stay

Stay dated

dated November

November 20,

20, 2025,

2025, and

and submits

submits the

the following

following Proposed

Proposed Findings

Findings of

Fact,

Fact, Conclusions

Conclusions of

of Law,

Law, Order,

Order, and

and Supporting

Supporting Legal

Legal Brief.

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CERTIFICATE

CERTIFICATE OF

OF SERVICE

SERVICE

Pursuant

Pursuant to

to Federal

Federal Trade

Trade Commission

Commission Rules

Rules of

of Practice

Practice 4.2(c)

4.2(c) and

and 4.4(b),

4.4(b), aa copy

copy of

of the

the

Authority’s Proposed

Authority’s

Proposed Findings

Findings of

of Fact,

Fact, Conclusions

Conclusions of

of Law,

Law, Order

Order and

and Supporting

Supporting Legal

Legal Brief

Brief is

being served

being

served on

on December

December 15,

15, 2025,

2025, via

via Administrative

Administrative E-File

E-File System

System and

and by

by emailing

emailing aa copy

copy

to:

Hon.

Hon. Jay

Jay L.

L. Himes

Himes

Administrative

Administrative Law

Law Judge

Judge

Office

Office of

of Administrative

Administrative Law

Law Judges

Judges

Federal

Federal Trade

Trade Commission

Commission

600

600 Pennsylvania

Pennsylvania Ave.

Ave. NW

Washington

Washington DC

DC 20580

20580

via

via e-mail

e-mail to

to Oalj@ftc.gov

Oalj@ftc.gov

and

and electronicfilings@ftc.gov

electronicfilings@ftc.gov

With

With aa hard

hard copy

copy to:

to:

Hon.

Jay

Himes

Hon. Jay L. Himes

Administrative

Administrative Law

Law Judge

Judge

Office

Office of

of Administrative

Administrative Law

Law Judges

Judges

Federal

Federal Trade

Trade Commission

Commission

11 Bowling

Bowling Green,

Green, Room

Room 318

318

New York,

NY 10004

New

York, NY

10004

Howard

Howard L.

L. Jacobs

Jacobs

Law

Law Offices

Offices of

of Howard

Howard L.

L. Jacobs

Jacobs

31111

31111 Agoura

Agoura Rd.,

Rd., Suite

Suite 225

225

Westlake

Westlake Village,

Village, CA

CA 91361

91361

Telephone

Telephone (805)

(805) 418-9892

418-9892

Fax

Fax (805)

(805) 418-9899

418-9899

Via

Via email

email to

to howard.jacobs@athleteslawyer.com

howard.jacobs@athleteslawyer.com

George

George M.

M. Wallace

Wallace

215

North Marengo

215 North

Marengo Avenue,

Avenue, Third

Third Floor

Floor

Pasadena,

Pasadena, CA

CA 91101-1504

91101-1504

Telephone

Telephone (626)

(626) 844-677

844-677

Fax

Fax (626)

(626) 795-0353

795-0353

Via

Via email

email to

to gwallace@wbslaw.com

gwallace@wbslaw.com

Counsel

Counsel for

for the

the Appellant

Appellant

/s/

Bryan Beauman

Beauman

/s/ Bryan

Enforcement

Enforcement Counsel

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PROPOSED

PROPOSED FINDINGS

FINDINGS OF

OF FACT

FACT

Background

Background to

to the

the Charges

Charges

Appellant’s veterinary

On July

July 23,

23, 2024,

2024, HIWU

HIWU Investigators

Investigators conducted

conducted aa search

search of

of Appellant’s

veterinary truck

truck

(the

Alamitos Race

(the “Search”)

“Search”) at

at Los

Los Alamitos

Race Course

Course (“Los

(“Los Alamitos”).

Alamitos”).! 1

During

During the

the Search,

Search, HIWU

HIWU Investigators

Investigators discovered

discovered and

and seized

seized the

the following

following Banned

Banned

Substances:

a. Four

Four injectable

injectable vials

vials of

of Testosterone,

Testosterone, which

which is

is aa Category

Category S1

S1 Banned

Banned Substance.

Substance.

The

The vials

vials of

of Testosterone

Testosterone lacked

lacked any

any prescription

prescription information.

information.”

jar of

b.b. One

One jar

of Isoxsuprine

Isoxsuprine Powder,

Powder, which

which is

is aa Category

Category S0

SO Banned

Banned Substance.

Substance. There

There

was

jar; however,

was an

an Equine

Equine Sports

Sports Medicine

Medicine prescription

prescription label

label affixed

affixed to

to the

the jar;

however, the

the

label

label lacked

lacked any

any date

date prescribed,

prescribed, horse,

horse, or

or Trainer

Trainer information.

information. The

The label

label also

also listed

listed

aa use-by

use-by date

date of

of 07/09/2023.

07/09/2023. 3

Notice letter

On October

October 17,

17, 2024,

2024, HIWU

HIWU sent

sent an

an Equine

Equine Anti-Doping

Anti-Doping Notice

letter to

to Appellant,

Appellant,

informing

informing him

him that

that he

he had

had been

been found

found in

in Possession

Possession of

of two

two (2)

(2) Banned

Banned Substances,

Substances, and

and this

this may

may

result

result in

in Anti-Doping

Anti-Doping Rule

Rule Violations

Violations (“ADRVs”).

(“ADRVs”). A

A Provisional

Provisional Suspension

Suspension was

was imposed

imposed on

Appellant,

November 4,

Appellant, effective

effective October

October 17,

17, 2024,

2024, which

which was

was subsequently

subsequently lifted

lifted on

on November

4, 2024.

2024.4

November 4,

On November

4, 2024,

2024, HIWU

HIWU charged

charged Dr.

Dr. Overly

Overly with

with two

two ADRVs

ADRVs for

for Possession

Possession of

Testosterone

Testosterone and

and Isoxsuprine

Isoxsuprine under

under ADMC

ADMC Program

Program Rule

Rule 3214(a)

3214(a) (the

(the “Possession

“Possession Rule”).

Rule”).° 5

' Uncontested

Uncontested Stipulation

Stipulation of

of Facts

Facts (“USF”)

(‘USF”) 1,

1, HISA

HISA Appeal

Appeal Book

Book (“AB”)

(“AB”) Tab

Tab 10,

10, p

p 1119.

1119.

USF

3b,

Tab

10,

1120.

2 USF 3b, AB Tab 10, p 1120.

USF 3a,

3 USF

3a, AB

AB Tab

Tab 10,

10, p

p 1119-1120.

1119-1120.

USF 7,

44 USF

7, AB

AB Tab

Tab 10,

10, p

p 1120-1121.

1120-1121.

USF 8,

5 USF

8, AB

AB Tab

Tab 10,

10, p

p 1121.

1121.

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II.

Evidence on Testosterone

Appellant produced no records to show that he had ever administered Testosterone to a

non-Covered Horse at Los Alamitos.6

HIWU’s veterinary expert, Dr. Dionne Benson, opined that it was unlikely Appellant would

treat any non-Covered Horses with Testosterone at Los Alamitos because such treatment would

result in the horse being placed on a “Vets’ List” and precluded from racing for six months under

California Horse Racing Board (“CHRB”) Regulations.7

When asked why he possessed Testosterone during the Search, Appellant did not tell

Investigator Bennett that Testosterone was needed for his non-Covered practice. Instead, Appellant

told Investigators that the Testosterone was for personal use.8

At the hearing, Appellant changed his story and testified that he used Testosterone in his

off-track practice for a horse named Cosmo. Cosmo is owned by Appellant’s veterinary technician,

Jessica Ingram, with whom Appellant has a previously undisclosed romantic relationship.9

To substantiate Appellant’s treatment of Cosmo, Appellant produced: (i) three deficient

DEA treatment logs (together, the “Treatment Logs”), which documented Testosterone

administrations on 7/23/23, 9/20/23, 3/1/24 and 7/30/24;10 and (ii) pharmacy invoices that failed

to match the lot numbers recorded in the Treatment Logs or provide a complete account as to when

the seized Testosterone was ordered.11

Cross-Examination of Cassandra Corbett (“Corbett Cross”), AB Tab 30, p 6052; Final Decision, ¶7.5.6.a.

Examination-in-Chief of Dr. Dionne Benson (“Benson Chief”) AB Tab 30, p 6372; Final Decision, ¶7.5.6.a.

Examination-in-Chief of Brian Bennett (“Bennett Chief”) AB Tab 30, p 5844-5846; Final Decision, ¶7.5.6.

Cross-Examination of Dr. Overly (“Overly Cross”), AB Tab 30, p 6281-6283; Counsel and Arbitrator Comments,

AB Tab 30, p 6313-6318; Cross-Examination of Jessica Ingram (“Ingram Cross”), AB Tab 30, p 6350-6351; Final

Decision, ¶7.5.6.b.

Expert Report of Dr. Dionne Benson (“Benson Report”) at paras 7b, 24-28, AB Tab 15, p 2675-2676, 2681-2683;

Treatment Logs, Tab F to the Witness Statement of Brian Bennett (“Bennett Statement”), AB Tab 8, p 172-174; Final

Decision, ¶7.5.6.b.

Benson Report at para 30, AB Tab 15, p 2683-2684; Pharmacy Invoices, Tab F to the Bennett Statement, AB Tab 8,

p 169-171; Photos of Testosterone, Exhibit B to Notice Letter, AB Tab 8, p 113-116; Final Decision, ¶7.5.6.b.

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10.

Dr. Benson critiqued Dr. Overly’s records, noting that he failed to produce any veterinary

medical records that provide a diagnosis or medical rationale for treating Cosmo with

Testosterone.12 During cross-examination, Appellant stated for the first time that such records

exist, but he failed to explain this omission or introduce the records into evidence.13

11.

Even if accepted as authentic records, the Treatment Logs show that Appellant was not

scheduled to treat Cosmos on the day of the Search, but a week later, on July 30, 2024.14 At the

hearing, Appellant admitted that: (i) it was his practice to always go back to his clinic after

completing his treatments at Los Alamitos; (ii) his truck was unloaded and reloaded as necessary

before going out to see his other, off-track patients; and (iii) his truck was typically loaded and

unloaded/reloaded twice a day, five days a week.15 In light of these admissions, the Arbitrator

concluded that there was no need for Testosterone to be loaded onto Appellant’s truck a week

before his next purported appointment with Cosmo.16

III.

12.

Evidence on Isoxsuprine

Appellant produced no records to show that he had ever administered Isoxsuprine to a non-

Covered Horse, at Los Alamitos or off-track.17

13.

Dr. Benson testified that Isoxsuprine is a non-FDA approved drug that is banned at Los

Alamitos.18 Appellant also admitted that the Isoxsuprine could not be used on non-Covered Horses

at Los Alamitos.19

Benson Report at paras 7b, 11, 22, 23; AB Tab 15, p 2675-2676, 2677, 2680-2681; Benson Chief, AB Tab 30; p

6377-6378.

Overly Cross, AB Tab 30, p 6269-6270; Final Decision, footnote 15.

Treatment Logs, Tab F to the Bennett Statement, AB Tab 8, p 172-174; Overly Cross, AB Tab 30, p 6268; Final

Decision, ¶7.5.6.b.

Overly Cross, AB Tab 30, 6227-6229, 6308-6311.

Final Decision, ¶7.5.6.b.

Corbett Cross, AB Tab 30, p 6053; Final Decision, ¶7.5.7.b.

Benson Chief, AB Tab 30, p 6378-6380.

Overly Cross, AB Tab 30, p 6230-6231, Final Decision, ¶7.5.7.a.

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14.

When asked why he possessed Isoxsuprine during the Search, Appellant did not tell

Investigator Bennett that he needed it for his Non-Covered practice. Instead, Appellant told

Investigators that the Isoxsuprine was old, and he did not know why it was on the truck.20

15.

At the hearing, Appellant again changed his story. Appellant and Ms. Ingram testified that

Ms. Ingram loaded Isoxsuprine onto his truck because a client requested that Appellant bring

Isoxsuprine to a July 17, 2024 appointment for a non-Covered Horse named “Brownie.” Appellant

and Ms. Ingram testified that they attended this appointment with another veterinarian, Dr. Cecilia

Chapparo.21

16.

Appellant did not produce any veterinary medical records documenting Brownie’s July 17,

2024 appointment. During cross-examination, Appellant stated for the first time that such records

exist, but once again failed to explain why they had not been produced. 22 Appellant also failed to

call Dr. Chapparo or Brownie’s owner as witnesses.23

17.

The Arbitrator concluded that, even if she accepted Appellant’s and Ms. Ingram’s

testimony, there was no explanation as to why expired Isoxsuprine was still on Appellant’s truck

six days after Brownie’s alleged appointment.24

18.

Appellant also had no explanation for why a tub of expired Isoxsuprine “fell through the

cracks” in his office and was still in a bin on site.25

Bennett Chief, AB Tab 30, p 5829; Final Decision, ¶7.5.7.

Examination-in-Chief of Dr. Overly (“Overly Chief”), AB Tab 30, p 6134-6136; Cross-Examination of Jessica

Ingram (“Ingram Cross”), AB Tab 30, p 6343-6344, 6355-6357.

Overly Cross, AB Tab 30, p 6212-6215.

Final Decision, footnote 17.

Final Decision, ¶7.5.7.b.

Overly Cross, AB Tab 30, p 6231; Final Decision, ¶7.8.13.h.

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IV.

19.

Dr. Scollay’s Public Guidance

Prior to the ADMC Program coming into effect, HIWU’s Chief of Science, Dr. Mary

Scollay, gave educational seminars on the ADMC Program. During her seminars, Dr. Scollay

consistently reminded horsemen that possessing Banned Substances is prohibited at all times.26

20.

At the hearing, Dr. Scollay testified about the guidance she would provide in response to

questions from Covered Persons about their ability to “justify” Possession of Banned Substances

during her education seminars. At one particular seminar at Will Rogers Downs in Claremore, OK,

one of the attendees posed a question about veterinarians whose practice includes farm work or

non-Covered Horses, and whether the Possession rules similarly applied to them. A discussion

followed during which Dr. Scollay provided the following explanation (“Will Rogers

Comments”):27

If the veterinarians are practicing also on a population of non-Covered Horses, they’re

taking care of quarter horses or they’ve got a country practice part-time they are able to

possess Banned Substance because we don’t have control over those horses, and so to the

extent that they want to use bisphosphonates on a non-Covered Horse, we can’t ban them

from possessing them… we can’t penalize people for something that we don’t have

control over so, you know, let’s just say because we have the ability to investigate, if

the story starts to get a little weird or a little extreme, you’re going to get more than

a raised eyebrow. But at the end of the day if someone is practicing out in the country,

we don’t have the authority to control the medications they administer or carry for nonCovered Horses… the regulation addresses if there is justification for them to be in

Possession of a Banned Substance and certainly a practice that incorporates nonCovered Horses. [Emphasis added]

21.

In all of Dr. Scollay’s seminars explanations to veterinarians, including the above-

referenced quote, she never stated that a veterinarian has a general or blanket exception to possess

Banned Substances at a Covered Racetrack if they claim to treat non-Covered Horses, or that a

Witness Statement of Dr. Scollay (“Scollay Statement”) at paras 4-5, AB Tab 15, p 2638-2639; Examination-inChief of Dr. Scollay (“Scollay Chief”), AB Tab 30, p 5924-5925.

Scollay Statement at para 4, AB Tab 15, p 2638-2639.

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Covered Person’s proffered justification will not be subject to further investigation if they have a

non-Covered practice.28

22.

When asked about her prior testimony in the Shell case – where she discussed the potential

confusion that could arise if there were a blanket definition of “justification” – Dr. Scollay

reiterated that there is no proportion of non-Covered practice that, standing alone, can establish a

compelling justification.29

23.

Dr. Scollay further testified that the specific intended use of Banned Substances must be

considered in every context to determine if there is a need to have it at the racetrack, and how that

Possession can be addressed.30

24.

At the Hearing, Appellant testified that he first read the Will Rogers Comments in a blog.31

Appellant’s counsel, Andrew Mollica, later made Appellant aware that the Will Rogers Comments

were referenced in HIWU v. Perez, a prior Possession decision under the ADMC Program.32

25.

During cross-examination, Appellant admitted that he could not recall when he read the

Will Rogers Comments or which blog he read them in.33 Appellant also admitted that he: (i) was

not present for Dr. Scollay’s presentation at Will Rogers Downs; (ii) had never watched an online

recording of the presentation, which had been posted online by an attendee; and (iii) had never

reviewed the slides from Dr. Scollay’s presentation.34

Scollay Chief, AB Tab 30, p 5925-5930.

Scollay Chief, AB Tab 30, p 5930-5934.

Scollay Chief, AB Tab 30, p 5934-5935.

Overly Cross, AB Tab 30, p 6189.

Overly Chief, AB Tab 30, p 6106-6111.

Overly Cross, AB Tab 30, p 6189-6190, 6192-6193.

Overly Cross, AB Tab 30, p 6193-6195.

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26.

Factors Affecting the Proportionality Analysis

After the parties submitted their written briefs but before the Hearing, ALJ Himes released

his decision In the Matter of Dr. Scott Shell, DVM (“Shell Appeal”),35 a case which similarly

concerned a veterinarian who was found in Possession of multiple Banned Substances during a

search of his veterinary truck at a Covered racetrack.

27.

In the Shell Appeal, ALJ Himes confirmed that Rule 3228(d) of the ADMC Program

permits HIWU to charge a Covered Person with an ADRV for each Banned Substance found in

their Possession;36 however, the principle of proportionality can be considered to determine

whether individual sanctions should be imposed for each charged and established ADRV, or

whether a Covered Person’s sanctions should be combined to allow for an overall reduction in

penalty.37 ALJ Himes concluded that Dr. Shell should be subject to one set of sanctions for his four

Possession ADRVs based on the following factors:

a. Dr. Shell practiced veterinary medicine for more than 37 years and there was no

dispute that he had been previously sanctioned by a veterinary board or racing

authority.38

b. The four ADRVs at issue in the Shell Appeal arose from Dr. Shell’s “professed but

mistaken belief” concerning his ability to possess Banned Substances for his farm

practice or use in West Virginia (where the ADMC Program is currently subject to

an injunction).39

Docket No. 9430 (March 6, 2025).

Shell Appeal, Docket No. 9430 (March 6, 2025) 44-48.

Shell Appeal, Docket No. 9430 (March 6, 2025) 49-50.

Shell Appeal, Docket No. 9430 (March 6, 2025) 50.

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c. Imposing consecutive Ineligibility periods and cumulative fines on Dr. Shell would

be disproportionate to his misconduct, in circumstances where: (i) he was close to

retirement, and an 8-year period of Ineligibility would result in permanent

expulsion from practicing in the HISA-covered racing industry; and (ii) a $100,000

fine would inflict undue financial burden.40

28.

HIWU distinguished the foregoing factors in its written closing submissions as follows:41

a. First, Appellant did not come to the Arbitration with “clean hands” and his

testimony was impeached twice at the hearing regarding his history with veterinary

regulatory authorities. After initially affirming in his witness statement that he had

never been charged with a violation at Los Alamitos,42 Appellant walked back his

testimony at the Hearing and stated he had never been charged with a “medication”

violation, associated with Los Alamitos or CHRB.43 During cross-examination,

HIWU’s counsel, Allison Farrell, asked Appellant about this testimony and took

him to a 15-allegation Amended Accusation pending before the California

Veterinary Medical Board (“Amended Accusation”). When confronted with the

Amended Accusation’s allegations that Appellant fraudulently administered the

medication Ritalin to his ex-spouse’s horse, Appellant conceded that these charges

arise from alleged conduct at Los Alamitos.44 Appellant was again impeached when

Ms. Farrell brought Appellant to four Stewards’ Rulings documenting his four prior

violations of the CHRB Rules between 2009 and 2018.45

Shell Appeal, Docket No. 9430 (March 6, 2025) 50.

HIWU Closing at para 40, AB Tab 31, 6417-6418.

Witness Statement of Dr. Overly (“Overly Statement”) at paras 5, 52, AB Tab 12, p 1162, 1172-1173.

Overly Chief, AB Tab 30, p 5410-5412.

Amended Accusation at paras 69-71, Tab 19, p 2939-2940; Overly Cross, AB Tab 30, p 5518-5522.

Stewards’ Rulings (Exhibits AA to AD), Tab 25, p 3098-3105; Overly Cross, AB Tab 30, p 5522-5536.

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b. Second, Appellant did not simply have a mistaken belief concerning his ability to

possess Banned Substances for use in his non-Covered practice. Rather, Appellant

could not point to any regular, documented use of Testosterone or Isoxsuprine in

his non-Covered practice. He otherwise offered inconsistent and poorly

substantiated explanations for sporadically administering Testosterone to Cosmo

and carrying expired Isoxsuprine for an undocumented appointment for Brownie.

Much of his corroborating evidence came from his veterinary technician Ms.

Ingram, whom he failed to disclose as his girlfriend until questioned on crossexamination.

c. Third, there was no evidence that Appellant was close to the end of his career such

that 4 potential years of Ineligibility from working with Covered Horses would

permanently expel him from practicing in the HISA-covered racing industry, nor

was there any indication that Appellant would face an undue financial burden given

the Arbitrator’s discretion to set financial penalties.

29.

The Arbitrator affirmed that HIWU properly charged Appellant with two ADRVs in

accordance with ALJ Himes’ analysis in the Shell Appeal. 46 However, the Arbitrator ultimately

determined that only one set of sanctions should be imposed on the basis that both ADRVs: (i)

arose from one search; and (ii) were related to Appellant’s professed but mistaken belief that

“because he had a majority of Non-Covered horses in his practice, he was able to carry Banned

Substances on his truck at Los Alamitos which were intended for use in his Non-Covered practice

without having to articulate or establish a specific need to carry that Banned Substance at Los

Alamitos for any particular part of his Non- Covered practice.”47

Final Decision ¶7.6.1-7.6.3.

Final Decision ¶7.7.5.

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VI.

30.

Factors Affecting Dr. Overly’s Degree of Fault

Appellant was aware that the ADMC Program was new and that it regulated the use and

possession of certain substances that may have previously been permitted.48

31.

There is no dispute Appellant knew Testosterone and Isoxsuprine are Banned Substances.

After reading the HISA Rules and taking inventory, Appellant only removed bisphosphonates from

his truck (and instructed his staff not to load bisphosphonates on his truck) because they were

banned by both CHRB and HISA rules.49

32.

Appellant knew that he had Testosterone on his veterinary truck at Los Alamitos, and Ms.

Ingram knew she loaded Isoxsuprine onto his veterinary truck on July 17, 2024.50

33.

Appellant testified that he read the rules, conducted due diligence, and claimed to have

read and relied on Dr. Scollay’s Will Rogers Comments before July 23, 2024. However, Appellant

also admitted that he made no effort to reach out to Dr. Scollay or anyone else at HIWU to discuss

the mixed nature of his practice, his need to carry Testosterone (or Isoxsuprine) at Los Alamitos,

and whether he was at risk of violating the Possession Rule.51

34.

Although he claimed to have read everything available to him, Appellant acknowledged he

had not read all the cases posted on the HIWU website and could not remember reading any of the

cases.52 Appellant also did not make any effort to review Dr. Scollay’s full presentation on the

ADMC Program.53

35.

Appellant admitted his truck was loaded and unloaded twice a day, five days a week

(typically before going to Los Alamitos each morning and after returning from Los Alamitos and

Overly Cross, AB Tab 30, p 6186-6187; Final Decision ¶7.8.5, 7.8.13.a.

Overly Cross, AB Tab 30, p 6220-6224; Final Decision ¶7.8.5, 7.8.13.g.

Ingram Cross, AB Tab 30, p 6355-6357; Overly Cross, AB Tab 30, p 6136; Final Decision ¶7.8.5, 7.8.13.g.

Overly Cross, AB Tab 30, p 6197-6198; Final Decision ¶7.8.5, 7.8.13.e.

Overly Cross, AB Tab 30, p 6187-6188; Final Decision ¶7.8.5, 7.8.13.f.

Overly Cross, AB Tab 30, p 6194-6195; Final Decision ¶7.8.5, 7.8.13.f.

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going

packing his

going to

to see

see off-track

off-track patients)

patients) and

and that

that he

he delegated

delegated the

the responsibility

responsibility of

of packing

his truck

truck to

to his

his

544

veterinary

veterinary technicians,

technicians, including

including Ms.

Ms. Ingram.

Ingram.°

VII.

36.

The

The Final

Final Decision

Decision

On August

August 21,

21, 2025,

2025, the

the Arbitrator

Arbitrator issued

issued aa Corrected

Corrected Final

Final Award

Award (“Final

(‘Final Decision”),

Decision’’),

which

which concluded

concluded that:

that:

justification for

possessing Testosterone

a. Appellant

Appellant failed

failed to

to establish

establish aa compelling

compelling justification

for possessing

Testosterone

or Isoxsuprine;

Isoxsuprine;>°

b.b. Appellant

Appellant was

was properly

properly charged

charged with

with two

two Possession

Possession ADRVs,

ADRVs, but

but Appellant

Appellant should

should

be subject

subject to

to one

one set

set of

of sanctions;

sanctions;°° and

and

c. Appellant’s

Appellant’s degree

degree of

of Fault

Fault was

was Significant,

Significant, but

but he

he should

should receive

receive aa modest

modest

reduction

reduction of

of 1-month

1-month to

to the

the standard

standard 24-months

24-months of

of Ineligibility.

Ineligibility.>’

37.

The

The Final

Final Decision

Decision imposed

imposed the

the following

following Consequences:

Consequences:

Appellant

be suspended

Appellant was

was to

to be

suspended for

for 23-months

23-months from

from the

the date

date of

of Issuance

Issuance of

of the

the Final

Final

Decision,

Decision, less

less 169

169 days

days credit

credit for

for time

time served

served under

under the

the prior

prior Period

Period of

of Ineligibility

Ineligibility

and

and subsequent

subsequent Voluntary

Voluntary Provisional

Provisional Suspension;

Suspension;

b. Appellant

Appellant was

was fined

fined $25,000

$25,000 USD;

USD; and

and

Appellant

Appellant was

was required

required to

to pay

pay $15,000

$15,000 USD

USD towards

towards HIWU’s

HIWU’s share

share of

of the

the

Arbitration costs.

Arbitration

costs.°®58

¶7.8.13.g.

4 Overly

Overly Cross,

Cross, AB

AB Tab

Tab 30,

30, 6227-6229,

6227-6229, 6308-6311;

6308-6311; Final

Final Decision

Decision 97.8.13.g.

¶7.5.8.

°5 Final

Final Decision,

Decision, 47.5.8.

¶7.6.3, 7.7.1-7.7.5.

%¢ Final

Final Decision,

Decision, 7.6.3,

7.7.1-7.7.5.

¶7.8.17.

57 Final

Final Decision,

Decision, §7.8.17.

¶8.1.

58 Final

Final Decision,

Decision, §8.1.

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PROPOSED CONCLUSIONS OF LAW

Appellant had the burden to establish a “compelling justification” by a preponderance of

the evidence. Appellant failed to meet his burden for either of the Possession ADRVs charged and

established in this matter. Appellant therefore committed two Possession ADRVs contrary to Rule

3214(a) of the ADMC Program.

Appellant was properly charged with two ADRVs.

Separate, consecutive sanctions should be imposed for each ADRV based on a proper

assessment of proportionality in accordance with the Shell Appeal.

Appellant failed to establish No Fault or Negligence.

Appellant bears responsibility for delegating the tasks of loading and unloading his

veterinary truck to his veterinary technicians, including Ms. Ingram.59 Any Fault committed by

Appellant’s delegates that contributes to either of his ADRVs is therefore strictly fixed to

Appellant.

The Arbitrator’s assessment of Fault was correct and should be applied in respect of each

ADRV, such that Appellant receives a 1-month reduction for each 24-month period of Ineligibility

imposed on him.

PROPOSED ORDER

Based on the foregoing findings of fact and conclusion of law, incorporated herein, the

undersigned Administrative Law Judge (“ALJ”) ORDERS AND ADJUDGES that:

a. Appellant failed to establish a compelling justification for possessing Testosterone

or Isoxsuprine.

Per the lex sportiva, the objective fact of a delegated third party’s misdeed is imputed to the Covered Person: see

e.g., CAS 2016/A/4643, Maria Sharapova v ITF at para 85.

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b.. Appellant

Appellant was

was properly

properly charged

charged with

with two

two Possession

Possession ADRVs,

ADRVs, for

for which

which he

he should

should

serve

serve separate

separate and

and consecutive

consecutive sanctions.

sanctions.

c. Appellant’s

Appellant’s degree

degree of

of Fault

Fault was

was Significant,

Significant, but

but he

he should

should receive

receive aa modest

modest

reduction

reduction of

of 1-month

1-month to

to the

the standard

standard 24-months

24-months of

of Ineligibility

Ineligibility for

for each

each ADRV.

ADRV.

d. The

be imposed

be 46-months

The period

period of

of Ineligibility

Ineligibility to

to be

imposed on

on Appellant

Appellant shall

shall be

46-months (23(23months

months per

per ADRV)

ADRV) from

from the

the date

date of

of issuance

issuance of

of the

the Arbitrator’s

Arbitrator’s Final

Final Decision,

Decision,

less

under the

less 169

169 days

days credit

credit for

for time

time served

served under

the prior

prior Period

Period of

of Ineligibility

Ineligibility and

and

subsequent

subsequent Voluntary

Voluntary Provisional

Provisional Suspension.

Suspension.

e. Appellant’s

Appellant’s fine

fine will

will be

be adjusted

adjusted from

from $25,000

$25,000 USD

USD to

to $35,000

$35,000 USD.

USD.

f. Appellant

Appellant will

will continue

continue to

to pay

pay $15,000

$15,000 USD

USD towards

towards HIWU’s

HIWU’s share

share of

of the

the

Arbitration

Arbitration costs.

costs.

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SUPPORTING LEGAL BRIEF

Introduction

This appeal concerns a review of the Final Decision, by which Appellant challenges the

Arbitrator’s conclusion that he violated ADMC Program Rule 3214(a) and seeks to overturn the

imposed Consequences ordered by the Arbitrator as arbitrary, capricious, an abuse of discretion,

prejudicial, or otherwise not in accordance with law. Specifically, Appellant contends: (i) he

established, by a preponderance of the evidence, that he had a compelling justification for

Possession of Banned Substances, and thus an ADMC Program Rule 3214(a) violation did not

occur; and (ii) the Arbitrator erroneously found that Appellant did not demonstrate “No Fault or

Negligence” such that all penalties should be expunged, or alternatively, Appellant’s degree of

Fault was minimal and his sanctions should have been reduced accordingly.

The Arbitrator correctly concluded that Appellant was in Possession of two Banned

Substances at Los Alamitos and failed to establish a compelling justification for Possession of

either Banned Substance on the evidence. Critically, Appellant’s assertion that a “compelling

justification” is established based on the composition of his practice is a red herring that would

render the Possession Rule meaningless and fails to consider the full context of public guidance

from HIWU’s former Chief of Science, Dr. Scollay.

The Arbitrator also correctly determined that: (i) Appellant’s conduct failed to establish

No Fault or Negligence; and (ii) Appellant is entitled to no more than a minimal reduction to his

period of Ineligibility. However, the Arbitrator’s Fault analysis erroneously applied principles of

proportionality to impose one set of Consequences for the two ADRVs that were established on

the evidence. This error should be corrected on de novo review by imposing consecutive 23-month

sanctions for each of the two Possession ADRVs, for a total of 46-months.

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II.

Summary of Applicable Law

The ADMC Program Rules that govern a Possession charge were summarized by the Chief

ALJ and ALJ Himes in prior appeals filed by Dr. Luis Jorge Perez, DVM,60 and Dr. Scott Shell,61

as well as Justice Sarah M. Davenport in her order denying a preliminary injunction in the matter

Jason Scott v. Horseracing Integrity & Safety Authority et al.62

Under Rule 3214(a), Possession of a Banned Substance without a “compelling

justification” constitutes an ADRV. HIWU bears the onus of establishing the fact of Possession,

which was undisputed in this case. The burden then shifts to the Covered Person to establish a

“compelling justification” defense, which is “fact-driven,” “case-specific,” and “part of a

regulatory scheme directed to banishing doping from thoroughbred horseracing.”63 Accordingly,

“compelling justification” excusing Possession is an “exception” that should “be interpreted

restrictively,” and an exemption that will apply in a “small minority” of cases.64

In the Scott Injunction Order, Justice Davenport rejected criticism that the Possession Rule

fails to provide Covered Persons with guidance on how to alter their practice to comply with the

rule. The Possession Rule clearly dictates that veterinarians should refrain from possessing Banned

Substances, which are set out in detail on the Authority’s “Prohibited List” – leaving “scant room

for confusion over what can and cannot be possessed.” A veterinarian can always comply with the

In the Matter of Luis Jorge Perez (“Perez Appeal”), Docket No. 9420 (February 7, 2024) 3-5.

Shell Appeal, Docket No. 9430 (March 6, 2025) 14-16.

Memorandum Order Denying Plaintiff’s Motion for a Preliminary Injunction (“Scott Injunction Order”),

No. 2:25-cv-632-SMD-GJF (October 22, 2025).

Shell Appeal, Docket No. 9430 (March 6, 2025) 16.

Shell Appeal, Docket No. 9430 (March 6, 2025) 16; Scott Injunction Order, No. 2:25-cv-632-SMD-GJF (October

22, 2025) 16.

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Possession Rule by not possessing the substances it prohibits. The Possession Rule does not need

to spell out all situations where the act of Possession is prohibited.65

Under Rule 3223(b), the required sanction for any violation of Rule 3214(a) is a period of

Ineligibility of two years, a fine of up to $25,000, and payment of some or all the adjudication

costs and HIWU’s legal costs. A Covered Person may be entitled to mitigated sanctions, where he

establishes on a balance of probabilities that he acted with No Fault or Negligence (Rule 3224), or

No Significant Fault or Negligence (Rule 3225). The determination of No Fault is rare and

exceptional.66

Pursuant to 15 U.S.C. §3058(b), the Consequences imposed on Appellant are subject to de

novo review. On appeal, the reviewing ALJ must determine: (i) whether Appellant’s acts are in

violation of the ADMC Program Rules approved by the Commission (here, Rule 3214(a)); and (ii)

whether the civil sanction ordered by the Arbitrator was arbitrary, capricious, an abuse of

discretion, prejudicial, or otherwise not in accordance with law.67

To pass the “arbitrary and capricious” standard, there must be a “rational connection

between the facts and judgment” at issue.68 To make this finding, the ALJ considers whether the

Decision was “based on a consideration of the relevant factors and whether there has been a clear

error of judgment.”69 Judicial review under the arbitrary and capricious standard looks to ensure

that “the agency has acted within a zone of reasonableness and, in particular, has reasonably

Scott Injunction Order, No. 2:25-cv-632-SMD-GJF (October 22, 2025) 15-16.

FIS v Therese Johaug v NIF, CAS 2017/A/5015 ¶185.

15 U.S.C. §3058 (b)(1), (b)(2)(A)(ii)-(iii); 16 C.F.R. § 1.146 (b)(2)-(3).

Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 31 (1983).

Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971), abrogated on other grounds by Califano

v. Sanders, 430 U.S. 99 (1977).

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considered the relevant issues and reasonably explained the decision.”70 Similarly, an “abuse of

discretion” arises where there is “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.” 71

Whether the sanctions are in accordance with the law is determined with reference to the

substantive law of the HISA statute and the implementing regulations, as summarized above.72

Pursuant to 15 U.S.C. §3058(b)(3)(A), 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.”73 The Authority requests that the ALJ uphold the determination that Appellant committed

two ADRVs and adopt the Arbitrator’s Fault analysis, but modify the award to impose

individualized Consequences for each established violation.

III.

Response to Appellant’s Grounds of Appeal

a. Appellant Failed to Establish a Compelling Justification for Possessing

Testosterone or Isoxsuprine

On appeal, Appellant asserts that he interpreted Dr. Scollay’s Will Rogers Comments to

mean that he could establish a compelling justification, through “records and testimony

demonstrating that his practice regularly used, or intended to use, the Banned Substances at issue

in his Non-Covered practice and, consequently, that he was permitted to be in possession of those

substances.”74

FCC v. Prometheus Radio Project, 141 S. Ct. 1150, 1158 (2021).

Nat’l Wildlife Fed’n v. Nat’l Marine Fisheries Serv., 422 F.3d 782, 798 (9th Cir. 2005).

This standard of review has been confirmed in other FTC appeals from civil sanctions imposed by the Authority,

including the Perez Appeal: Docket No. 9420 (February 7, 2024).

15 U.S.C. §3058(b)(3)(A)(ii)-(iii).

Appellant Notice of Appeal and Application for Review, p 2.

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The evidence shows that Dr. Scollay did not give any public guidance indicating that a

veterinarian has a general or blanket exception to possess Banned Substances if they “claim” to

treat non-Covered Horses, or that a Covered Person’s proffered justification will not be subject to

further investigation if they have a non-Covered practice.75 Rather, the specific intended use of

Banned Substances must be considered in every context to determine if there is a need to have it

at the Racetrack, and how that Possession can be addressed.76 Any finding to the contrary would

transform the “compelling justification” defense into an exception that swallows the Possession

Rule and renders it meaningless.

Moreover, Appellant’s records and testimony clearly did not establish that he had a need to

possess Testosterone or Isoxsuprine at Los Alamitos for his non-Covered Horse practice. In

reaching this conclusion, the Arbitrator fully considered the evidence before her, with respect to

each Banned Substance in issue.

The Testosterone Evidence

With respect to the Testosterone, Appellant’s records showed that he has never used

Testosterone on a non-Covered Horse at Los Alamitos.77 This was consistent with Dr. Benson’s

evidence that treating a non-Covered Horse with Testosterone would preclude the horse from

racing for six-months at Los Alamitos.78

After initially telling Investigators that the Testosterone was for personal use,79 Appellant

attempted to justify his Possession on the basis that he used Testosterone in his off-track practice

HISA Proposed Finding of Fact (“PFF”) #21; Scollay Chief, AB Tab 30, p 5925-5930.

PFF #23; Scollay Chief, AB Tab 30, p 5934-5935.

PFF #5; Corbett Cross, AB Tab 30, p 6052; Final Decision, ¶7.5.6.a.

PFF #6; Benson Chief, AB Tab 30, p 6372; Final Decision, ¶7.5.6.a.

PFF #7; Bennett Chief, AB Tab 30, p 5844-5846; Final Decision, ¶7.5.6.

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for a horse named Cosmo. Cosmo is owned by Appellant’s veterinary technician, Ms. Ingram,

with whom Appellant has a previously undisclosed romantic relationship, raising serious

credibility concerns.80 Moreover, Appellant failed to produce any veterinary medical records for

Cosmo documenting a diagnosis or medical rationale for Testosterone treatment – despite claiming

that such records exist, and failing to provide an explanation as to why they were not produced.81

In any event, the limited records that were produced by Appellant included Treatment Logs

which showed that Appellant was not scheduled to treat Cosmos on the day of the Search, but a

week later, on July 30, 2024. But at the hearing, Appellant admitted that: (i) it was his practice to

always go back to his clinic after completing his treatments at Los Alamitos; (ii) his truck was

unloaded and reloaded as necessary before going out to see his other, off-track patients; and (iii)

his truck was typically loaded and unloaded/reloaded twice a day, five days a week. In light of

these admissions, the Arbitrator rightly concluded that there was no need for Testosterone to be

loaded onto Appellant’s truck a week before his next purported appointment for Cosmo.82

The Isoxsuprine Evidence

With respect to the Isoxsuprine, Appellant’s records showed that he has never used

Isoxsuprine on a non-Covered Horse at Los Alamitos or off-track.83 This was consistent with Dr.

Benson’s evidence that Isoxsuprine is banned at Los Alamitos, and Appellant’s admission that the

Isoxsuprine could not be used.84

PFF #8; Overly Cross, AB Tab 30, p 6281-6283; Counsel and Arbitrator Comments, AB Tab 30, p 6313-6318;

Ingram Cross, AB Tab 30, p 6350-6351; Final Decision, ¶7.5.6.b.

PFF #10; Overly Cross, AB Tab 30, p 6269-6270; Final Decision, footnote 15.

PFF #11; Treatment Logs, Tab F to the Bennett Statement, AB Tab 8, p 172-174; Overly Cross, AB Tab 30, p 6268;

Final Decision, ¶7.5.6.b.

PFF #12; Corbett Cross, AB Tab 30, p 6053; Final Decision, ¶7.5.7.b.

PFF #13; Benson Chief, AB Tab 30, p 6378-6380; Overly Cross, AB Tab 30, p 6230-6231, Final Decision, ¶7.5.7.a.

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During the Search, Appellant initially told Investigators that he did not know why (expired)

Isoxsuprine was on his truck.85 At the Hearing, Appellant and Ms. Ingram then testified that Ms.

Ingram had, in fact, loaded Isoxsuprine onto the truck because a client requested that Appellant

bring Isoxsuprine to a July 17, 2024 appointment for a non-Covered Horse named “Brownie.”86

Appellant did not produce any veterinary medical records documenting Brownie’s July 17, 2024

appointment – despite (once again) claiming for the first time at the hearing that such records

exist.87

The Arbitrator ultimately concluded that, even if she accepted Appellant’s and Ms.

Ingram’s testimony, there was no explanation as to why expired Isoxsuprine was still on

Appellant’s truck six days after Brownie’s alleged appointment88 – particularly when Appellant’s

truck was frequently loaded and unloaded in the usual course.89

Taken as a whole, there is no basis to reverse the Arbitrator’s conclusions on the

“compelling justification” defense or reach a different conclusion on de novo review of the

evidence.

b. Appellant’s Grounds for Reducing His Sanctions Should be Rejected

Appellant also failed to meet his burden to establish: (i) No Fault, such that all

Consequences ordered against him should be eliminated; or (ii) a basis to further reduce his

Consequences under the Fault analysis.90

PFF #14; Bennett Chief, AB Tab 30, p 5829; Final Decision, ¶7.5.7.

PFF #15; Overly Chief, AB Tab 30, p 6134-6136; Ingram Cross, AB Tab 30, p 6343-6344, 6355-6357.

PFF #16; Overly Cross, AB Tab 30, p 6212-6215.

PFF #17; Final Decision, ¶7.5.7.b.

PFF #11; Overly Cross, AB Tab 30, 6227-6229, 6308-6311.

As discussed below, the Arbitrator (erroneously) determined that principles of proportionality required the sanctions

for Appellant’s two Possession ADRVs to be combined and considered under a single Fault analysis. Accordingly, the

Arbitrator considered whether the standard two years of Ineligibility for a single ADRV should be eliminated or

reduced. Final Decision ¶7.7.1-7.7.5.

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Appellant’s claim that he established No Fault is based on the assertion that a “reasonable

veterinarian” would have interpreted Dr. Scollay’s statements to mean that he could carry Banned

Substances if he had “proper records demonstrating Non-Covered use or intended use.”91 This

argument fails on two fronts, with regard to the evidence discussed above: (i) Appellant cannot

establish No Fault by relying on a selective and self-serving interpretation of Dr. Scollay’s

guidance, which would render the Possession Rule meaningless; and (ii) in any event, Appellant

produced no records showing that he had ever used or intended to use Testosterone or Isoxsuprine

in his Non-Covered practice at Los Alamitos.

The law is clear that No Fault is a high burden to prove: Covered Persons must demonstrate

that it was nearly impossible for them to reasonably suspect or know that they may be committing,

or at risk of committing, an ADRV.92 The Arbitrator applied this standard, noting that to establish

No Fault, Appellant needed to show that “despite the exercise of utmost caution he could not have

reasonably known or suspected he was committing an ADRV by having Testosterone and/or

Isoxsuprine on his veterinary truck at Los Alamitos.”93

Appellant’s conduct falls well below this standard, in circumstances where the undisputed

evidence shows that:

•

Appellant was aware of the new ADMC Program Rules and claims to have studied them;94

•

Appellant knew Testosterone and Isoxsuprine are Banned Substances under the new

ADMC Program Rules;95

Appellant Notice of Appeal and Application for Review, p 2.

WADA Code, article 10.5, note 65; FIS v Therese Johaug v NIF, CAS 2017/A/5015 ¶185.

Final Decision ¶7.8.4.

PFF #30; Overly Cross, AB Tab 30, p 6186-6187; Final Decision ¶7.8.5, 7.8.13.a.

PFF #31; Final Decision ¶7.8.5, 7.8.13.g.

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•

Appellant knew he had Testosterone on his veterinary truck at Los Alamitos;96

•

Ms. Ingram knew that she loaded Isoxsuprine onto Appellant’s veterinary truck on July 17,

2024;97

•

Appellant admitted he read the rules, conducted due diligence, and claimed to have read

and relied on the Will Rogers Down Comments before July 23, 2024, but made no effort

to reach out to Dr. Scollay or anyone else at HIWU to discuss the mixed nature of his

practice, his need to carry Testosterone (or Isoxsuprine) at Los Alamitos, and whether he

was at risk of violating the Possession Rule;98 and

•

Appellant made no effort to review Dr. Scollay’s full presentation on the ADMC Program.99

Taken as a whole, the Arbitrator’s No Fault analysis was rationally connected to the facts,

based on a relevant consideration of factors, and otherwise in accordance with the law on the No

Fault standard. There is no legal or factual basis to overturn her analysis, which was consistent

with all prior decisions issued on the subject under the ADMC Program.

In considering the appropriate degree of Fault, the Arbitrator also properly applied the twostep Cilic framework, which has been adopted in multiple decisions under the ADMC Program:100

•

First, the Arbitrator concluded that Appellant demonstrated Significant Fault based on

relevant objective factors, which warrants a sanction between 17-24 months.101 A

PFF #32; Ingram Cross, AB Tab 30, p 6355-6357; Overly Cross, AB Tab 30, p 6136; Final Decision ¶7.8.5, 7.8.13.g.

As the Arbitrator noted, Ms. Ingram’s knowledge is imputed to Dr. Overly and he is strictly liable for ensuring that

the staff he delegates responsibility to for loading and unloading substances on his veterinary truck comply with the

Rules.

PFF #33; Overly Cross, AB Tab 30, p 6197-6198; Final Decision ¶7.8.5, 7.8.13.e.

PFF #34; Overly Cross, AB Tab 30, p 6194-6195; Final Decision ¶7.8.5, 7.8.13.f.

100

Cilic v International Tennis Federation, CAS 2013/A/3327, cited in HIWU v. Poole, JAMS No. 1501000576 ¶7.167.17.

101

Final Decision ¶7.8.11-7.8.13.

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reasonable veterinarian in Appellant’s position would not have assumed that he had a

right to carry Banned Substances at Los Alamitos without a specific need for those

substances in his or her Non-Covered practice based simply on the Will Rogers

Comments. Instead, a reasonable veterinarian would have perceived risk in carrying

Banned Substances at Los Alamitos and taken further steps to mitigate that risk.102

•

Second, the Arbitrator considered whether there were any subjective factors that

justified reducing Appellant’s sanction below 24-months. Appellant was only entitled

to a slight reduction of 1-month on the basis that there was no evidence he intended to

or did treat Covered Horses with Testosterone or Isoxsuprine, and thus there was no

evidence he intended to cheat.103

Further reducing Appellant’s period of Ineligibility would have been inconsistent with the

sanction ranges established by Cilic, adopted in HIWU v. Poole and followed by other members

of the Arbitral Body, and prior ALJ decisions. Accordingly, there is once again no legal or factual

basis to alter the Arbitrator’s Fault analysis and to do so would be a rejection of all other ADMC

Program jurisprudence on this issue.

c. Appellant’s Sanctions Should be Separately Imposed for each ADRV

If the ALJ affirms that Appellant committed the two ADRVs at issue, Appellant’s

Consequences should be modified to impose a 23-month period of Ineligibility for each ADRV. As

outlined below, the Arbitrator’s proportionality analysis was not rationally connected to the facts.

Accordingly, her decision to impose one set of Consequences was arbitrary and capricious.

102

103

Final Decision ¶7.8.14.

Final Decision ¶7.8.15-7.8.17.

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The Arbitrator failed to consider any of the following factors, which distinguish Appellant’s

case from ALJ Himes’ proportionality analysis in the Shell Appeal:

•

Appellant does not have a clean history with veterinary regulatory authorities and was

impeached twice at the Hearing when questioned about: (i) an ongoing proceeding

before the California Veterinary Medical Board; and (ii) four Stewards’ Rulings

documenting his four prior violations of CHRB Rules between 2009 and 2018.104

•

Whereas Dr. Shell had a professed but mistaken belief that he could possess Banned

Substances for his farm practice or use in West Virginia, Appellant did not produce

similar evidence that the Banned Substances at issue were, in fact, regularly being used

in Appellant’s non-Covered practice. As outlined above, Testosterone use was poorly

substantiated and limited to sporadic treatments of one horse, owned by Appellant’s

veterinary technician and girlfriend. Isoxsuprine use was never documented. Moreover,

Arbitrator’s finding that Appellant had a professed but mistaken belief that he could

possess Banned Substances at Los Alamitos for “intended use” in non-Covered

practice, without any need to “articulate or establish a specific need”, ignores the fact

that Appellant failed to establish even a hypothetical, prophylactic need for

Testosterone or Isoxsuprine. To reiterate the evidence above, Appellant has never used

Testosterone or Isoxsuprine in his non-Covered practice at Los Alamitos.105

•

There is no evidence that imposing consecutive, cumulative sanctions for each ADRV

would end Appellant’s career – shortly before retirement or otherwise – or cause undue

104

PFF #28; Amended Accusation at paras 69-71, Tab 19, p 2939-2940; Overly Cross, AB Tab 30, p 5518-5522;

Stewards’ Rulings (Exhibits AA to AD), Tab 25, p 3098-3105; Overly Cross, AB Tab 30, p 5522-5536.

105

PFF #5: Corbett Cross, AB Tab 30, p 6052; Final Decision, ¶7.5.6.a; PFF #12: Corbett Cross, AB Tab 30, p 6053;

Final Decision, ¶7.5.7.b.

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financial

financial harm.

harm. In

In fact,

fact, the

the Authority

Authority acknowledges

acknowledges that

that there

there is

is discretion

discretion to

to set

set

financial

penalties and

financial penalties

and is

is only

only seeking

seeking to

to increase

increase Appellant’s

Appellant’s fine

fine to

to an

an amount

amount not

not to

106

exceed

exceed $35,000.

$35,000.!°

Appellant, each

If separate

separate sanctions

sanctions are

are imposed

imposed on

on Appellant,

each 23-month

23-month period

period of

of Ineligibility

Ineligibility

should

be served

should be

served consecutively.

consecutively. This

This approach

approach is

is consistent

consistent with

with the

the framework

framework applied

applied by

by ALJ

ALJ

Himes

by which

proportionality determines

Himes in

in the

the Shell

Shell Appeal,

Appeal, by

which proportionality

determines whether

whether aa Covered

Covered Person

Person is

subject

be illogical

subject to

to aa single

single set

set of

of sanctions,

sanctions, or

or one

one set

set of

of sanctions

sanctions per

per ADRV.

ADRV. It

It would

would be

illogical and

and

antithetical

antithetical to

to this

this framework

framework to

to conclude

conclude that

that even

even where

where proportionality

proportionality dictates

dictates that

that separate

separate

sanctions

period.

sanctions be

be imposed,

imposed, they

they should

should run

run concurrently

concurrently over

over the

the same

same period.

ALL

ALL OF

OF WHICH

WHICH IS

IS RESPECTFULLY

RESPECTFULLY SUBMITTED

SUBMITTED THIS

THIS 15

15" day

day of

of December,

December, 2025.

2025.

/s/Bryan H.

H. Beauman

Beauman

/s/Bryan

BRYAN

BRYAN BEAUMAN

BEAUMAN

REBECCA

REBECCA PRICE

PRICE

333

333 W.

W. Vine

Vine Street,

Street, Suite

Suite 1500

1500

Lexington,

Lexington, Kentucky

Kentucky 40507

40507

Telephone:

Telephone: (859)

(859) 255-8581

255-8581

bbeauman@sturgillturner.com

rprice@sturgillturner.com

HISA

HISA ENFORCEMENT

ENFORCEMENT COUNSEL

COUNSEL

106

106 Pursuant

Pursuant to

to ADMC

ADMC Program

Program Rule

Rule 3223,

3223, the

the default

default financial

financial penalty

penalty for

for aa first-time

first-time Possession

Possession ADRV

ADRV is

is aa fine

fine

of “up

“up to”

to” $25,000.

$25,000. If

If Appellant

Appellant is

is found

found to

to have

have committed

committed two

two first-time

first-time ADRVs,

ADRVs, the

the ALJ

ALJ may

may impose

impose aa financial

financial

penalty

up to

penalty of

of up

to $25,000

$25,000 per

per violation

violation ($50,000

($50,000 total)

total) but

but retains

retains discretion

discretion to

to set

set aa lower

lower financial

financial penalty.

penalty.

FEDERAL TRADE COMMISSION | OFFICE OF THE SECRETARY | FILED 12/15/2025 OSCAR NO. 614479 -PAGE Page 28 of 28 *PUBLIC *

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MICHELLE

MICHELLE C.

C. PUJALS

PUJALS

ALLISON

ALLISON J.

J. FARRELL

FARRELL

4801

4801 Main

Main Street,

Street, Suite

Suite 350

350

Kansas

Kansas City,

City, MO

MO 64112

64112

Telephone:

Telephone: (816)

(816) 291-1864

291-1864

mpujals@hiwu.org

mpujals@hiwu.ore

afarrell@hiwu.org

HORSERACING

HORSERACING INTEGRITY

INTEGRITY &

WELFARE

UNIT,

DIVISION

WELFARE UNIT, A DIVISION OF

DRUG

DRUG FREE

FREE SPORT

SPORT LLC

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.