By Laura Donnellan, Lecturer in Law, School of Law, University of Limerick, Ireland
Oisín Murphy, the Irish flat racing jockey, failed a breathalyser test at Salisbury in the UK on Sunday, 16 June 2019.
Murphy was scheduled to take part in five races that day; however, following a British Horseracing Authority (BHA) steward’s report, he was disqualified for the day. This occurred just two days before this year’s Royal Ascot horse racing event.
The BHA rules relating to banned substances and notifiable medications can be found under Schedule 3 of the British Horseracing Authority (BHA) Rules (available at: http://newrules.britishhorseracing.com/Orders-and-rules&staticID=126147&depth=3).
The rules are divided into two parts. Part 1 relates to banned substances and states that the 14 category list is not exhaustive, the emphasis is on substances that impair the performance of a jockey and bans ‘[t]he use, deliberate or otherwise, of any substance that may cause advantage to the rider or impair his capability, judgement, coordination or alertness’.
Under the categories of banned substances, alcohol is listed first.
It states that alcohol is prohibited if the ‘threshold in the A sample [is] at or above 54 milligrams per 100 millilitres in urine or 17 micrograms per 100 millilitres in breath (as measured using BHA approved, evidential breath testing equipment)’.
The threshold is relatively low when compared with the limits for driving while under the influence of alcohol. In England, Wales and Northern Ireland the limit is 107 milligrams per 100 millilitres of urine, or 67 micrograms per 100 millilitres of urine in Scotland (Gov.uk, ‘The drink drive limit’, https://www.gov.uk/drink-drive-limit). The limit for breath is 35 micrograms per 100 millilitres, or 22 in Scotland. Thus, a driver is permitted to have twice the amount of alcohol than a jockey.
There is an important distinction between riding a horse and driving a car while under the influence of alcohol. The horse has a mind of its own and depends on the jockey to guide them through the race. There is an animal welfare issue if the rider has consumed excessive amounts of alcohol as it may impair their judgement, alertness and coordination which poses a risk for their own horse, their fellow riders and their horses.
The Professional Jockeys Association (PJA) on its website states that horseracing requires ‘a safe arena for competition in the most dangerous of all professional sports’ (PJA, ‘Banned and Notifiable Substances’, http://www.thepja.co.uk/members-info/regulatory/bannedsubstances/).
Jockeys may be tested at any time on the racecourse and off-course in certain circumstances (Schedule 4-The protocol for the testing of riders for banned substances and procedures for notifiable medication, Part 1, Rule 6.1 and Part 8, Sampling Tests Conducted Off-Course, Rules 66-74, http://newrules.britishhorseracing.com/Orders-and-rules&staticID=126148&depth=3).
A rider, who tests positive twice for alcohol at or above the permitted limit, is suspended for the day (Schedule 4, Part 1, 8). The procedures for urine sampling are detailed in Part 4 of Schedule 4, Rules 23-45.
Part 5 of Schedule 4, paragraphs 46-54 on Breath Testing for Alcohol Sampling Procedures and other Sampling Procedures augment the brief reference to alcohol testing in Part 1.
Paragraph 46 states that testing for alcohol is non-selective, in that all riders present at the meeting will be tested. Paragraph 47 provides that where a SO is present to conduct the breathalyser tests, the rider must wait to weigh out until after the test. Under paragraph 48, the testing process must be explained to the rider and failure to provide an immediate sample may be deemed a violation of the rules, unless the rider can establish that s/he is physically unable to provide a sample. The stewards will rarely give an exemption in relation to a breathalyser test. On a finding of the presence of alcohol on or above the limits, a second test is carried out fifteen minutes later. If that sample again shows the presence of alcohol on or above the limits, the rider will have failed the test.
The penalty is a ban from riding that day and the matter is referred to the BHA. If the readings differ from the two samples, the lower reading will be recorded in order to determine the appropriate sanction (paragraph 49). According to paragraph 50, if the lower of the two readings is between 17 and 50 micrograms per 100 millimetres in breath, the rider may decide to provide a urine sample of at least 30ml. If the rider fails to provide a urine sample within thirty minutes of the second breath test, s/he will be subject to disciplinary sanction based on the lower of the two readings.
If a urine sample is provided, the disciplinary action will be based on the urine sample and no reference will be made to the breathalyser tests (paragraph 51). If there are questions raised as to the validity of urinalysis, then the lower of the two breathalyser readings will determine the sanction. The Chief Medical Advisor will inform the rider of the results of the urinalysis and an enquiry will be held shortly after the notification (paragraph 52). If the rider did not provide a urine test, an enquiry before a Disciplinary Panel will take place promptly on the basis of the breathalyser tests.
The BHA’s Guide to Procedures and Penalties 2018 sets out the recommended penalties with an entry point and a range (https://www.britishhorseracing.com/wp-content/uploads/2019/04/Guide-to-Main-Bocy.pdf). These rules will remain in place until the new Rule Book comes into force in September 2019.
Under ‘Banned Substances’ and Alcohol on page 58, for a first offence the entry point is a caution and the disqualification of the rider for the day. This refers to 20-38 micrograms per 100 millilitres of breath or at or above 54 micrograms per 100 millilitres of urine (‘lower level’). For 39 and over micrograms per 100 millilitres of breath or 108 and above micrograms per 100 millilitres of urine, the entry point is 40 days and the range 28-60 days (‘higher level’). There a margin of error that is taken into account with regard to the readings.
If a rider commits a second offence within 24 months, there is an entry point of ten days and range from seven to 21 days if the first offence was of a lower level and for higher level first offences, the entry point is 14 days and the range is from seven to 21 days. For upper level second offences, the entry point, if the first offence is lower level, is 45 days and the range is 40-60 days. For upper level second offences, if the first offence is upper level, the entry point is 100 days and the range is 90-120 days. A third offence within 36 months, whether upper or lower level, will result in an entry point of 90 days and a range of 60-180 days.
The levels that were detected in Murphy’s sample have not been released. As he was required to stand down for the day it would seem to have been a lower level offence.
While the incident has no doubt brought embarrassment to the jockey, his performance at Ascot was not affected. According to the latest results from the Flat Jockeys Championship 2019, Murphy is in first place with 48 wins and total prize winnings of £850,952 (PJA, ‘The Flat Jockeys Championship 2019’, http://www.thepja.co.uk/championships/flat-jockeys-championship/).
While attracting negative media attention, which in some way detracts from his current success, Murphy won on his mount, Dashing Willoughby, at the Queen’s Vase at Ascot (‘Royal Ascot wrap: Murphy off mark on Dashing Willoughby’, RTÉ, 19 June 2019, https://www.rte.ie/sport/racing/2019/0619/1056318-roya-ascot-wrap-murphy-off-mark-on-dashing-willoughby/).
The Rules of Racing are to protect the riders and the horses and, while alcohol cannot be equated with a substance such as cocaine, it has tarnished the imagine of the sport, and Murphy will need to ensure that he does not consume alcohol before another event or he will face more stringent sanctions for a second offence!
Laura Donnellan may be contacted by e-mail at ‘Laura.Donnellan@ul.ie’