HISA Arbitrator Suspends Trainer Serpe for Two Years

Phil Serpe, a veteran trainer of three grade 1 winners, has been suspended from racing for two years for a clenbuterol finding in his horse Fast Kimmie after she won an Aug. 10, 2024, race at Saratoga Race Course. The suspension was issued as the final decision of the Horseracing Integrity and Safety Authority's Anti-Doping and Medication Control Program Arbitration Panel in the matter of HISA's enforcement arm, the Horseracing Integrity and Welfare Unit, vs. Serpe. The decision was issued July 9 and posted to the HIWU website July 14. In its final decision, the arbitrator called for Fast Kimmie to be disqualified from her half-length victory in the Aug. 10 race at Saratoga, a $30,000 claiming race. The ruling calls for the $27,500 first-place prize earned by Fast Kimmie, owned by WellSpring Stables, to be redistributed. Miss Fasionista, second across the wire, is awarded the win, and the horses behind her are also moved up. The two-year suspension of Serpe will credit the trainer with 25 days served during a provisional suspension from Oct. 10 - Nov. 4 of last year. Serpe has conditioned top runners such as grade 1 winners Leave No Trace, Birdonthewire, and Captive Miss, with Leave No Trace scoring that top-level victory some 30 years after Captive Miss's grade 1 win in 1992. Clenbuterol is a bronchodilator that has been used to treat congestion in horses. But because clenbuterol also can deliver anabolic effects, HISA has added restrictions on its use and has increased sanctions for its abuse. Under HISA, clenbuterol only can be administered in the context of a valid veterinarian-client-patient relationship for therapeutic use at a maximum of 30 days. It is deemed a banned substance if not prescribed by a veterinarian, and such treated horses are to be placed on the vet's list—a listing of horses ineligible to race. Under HISA and HIWU, banned substances call for more severe penalties than substances in the therapeutic category. Serpe's representatives had pointed to a hair sample analysis from Fast Kimmie that came up negative for clenbuterol as they contended that the adverse post-race testing had occurred because of inadvertent exposure. The hair testing was conducted after the clenbuterol positive initially was called by the Kenneth L. Maddy Equine Analytical Chemistry Laboratory Aug. 27 in Davis, Calif., based on analysis of a post-race urine sample. That post-race finding was backed Oct. 8 by B sample testing by the Ohio Department of Agriculture Analytical Toxicology Laboratory. The arbitrator's 16-page final decision notes that the UC Davis Lab also conducted a segmental analysis on six inches of a hair sample collected Dec. 11, 2024, from Fast Kimmie, and those tests came back negative. Serpe's representative argued that those negative results conflict with the positive clenbuterol finding from the urine analysis. Serpe said the hair test finding calls into question the accuracy of the urine testing. Blood tests were also negative. But the arbitrator noted that any adverse finding in blood, urine, or hair is enough to call a positive, with no further testing required. It pointed to a HISA rule on alternative biological matrices that notes, "Any negative analytical testing results obtained from hair, hoof, saliva, or other biological material shall not be used to counter adverse analytical findings or atypical findings from urine, blood (including whole blood, plasma or serum), or hair." As an expert witness for Serpe, Dr. Cynthia Cole suggested that the hair sample should have come up positive for clenbuterol if it were regularly being administered to Fast Kimmie. Such regular administration is associated with clenbuterol's anabolic effects. But the arbitrator wasn't moved, saying that even Cole's report noted that a single dose of clenbuterol might not have been detected in hair samples. The arbitrator said that for Serpe to challenge the adverse finding of the urine sample, he would need to establish that there has been a specific departure from laboratory standards or testing procedures. Serpe also pointed to out-of-competition tests before the race in question that found no clenbuterol in Fast Kimmie's system. Samples were collected June 19, 2024. The arbitrator said that prior or subsequent testing results are not relevant to whether an adverse finding has occurred. The arbitrator said Serpe fell short of providing evidence that backed his argument that the exposure to clenbuterol may have resulted from cross-contamination. "The evidence adduced by Mr. Serpe falls well short of establishing on a balance of probabilities the source of clenbuterol. He has not provided any affirmative evidence of contamination," the arbitrator said in the final decision. "Mr. Serpe's expert Dr. Cynthia Cole does not provide any affirmative evidence of contamination either. "The Cole Report gestures at the theoretical possibility of inadvertent transfer of clenbuterol. But Dr. Cole provides no opinion that there is any specific fact in this case that renders inadvertent exposure the likely explanation for Fast Kimmie's (adverse finding)." Serpe is pursuing litigation against HISA and the Federal Trade Commission. In a lawsuit filed Oct. 17, 2024, in a United States District Court for the Southern District of Florida, his representatives argue that HISA's enforcement against Serpe is unconstitutional as it does not allow the enforcement action to be considered in federal district court. The federal court filing on behalf of Serpe notes: "To contest the alleged ADMC Program Violation and dispute the proposed consequences, HIWU's charge letter presented Serpe only the option of doing so 'at a hearing before an adjudicator from the arbitral body in accordance with ADMC Program Rule 3261 of the protocol and arbitration procedures.' "If Serpe declined to proceed with the arbitration, then he is 'deemed to have waived [his] right to a hearing, admitted the anti-doping rule violation(s) charged, and accepted the consequences specified by HIWU in [the] EAD Charge Letter without any mitigation of those consequences.' All the proposed consequences would then be imposed automatically, including the monetary fine." On May 29 United States District Judge David Leibowitz denied Serpe's request for injunctive relief while the case is heard, but did note that Serpe could renew the application for an injunction after arbitration.