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B.J. Foley (Qualified Rider) – Banned Substance, Limerick - 7 July 2013

The Referrals Committee, Judge Tony Hunt (in the Chair), P.J.A. O’Connor and Hugh Ferguson met at the Turf Club, the Curragh, Co. Kildare on Monday, 7th October 2013, to consider a report from IMIM Hospitaldelmar in Barcelona, Spain that a sample of urine taken from B.J. Foley, qualified rider, during in-competition testing on 7th July 2013 at Limerick Racecourse, Co. Limerick, was found to contain Methylenedioxymethamphetamine (MDMA) and its metabolite Methylenedioxyamphetamine (MDA).  Both are banned substances under the Rules of Racing and are prohibited in-competition pursuant to the World Anti-Doping Agency Prohibited List International Standard, as adopted by the Turf Club.  The “A” sample findings were accepted by B.J. Foley and as such the “B” sample was not tested.

At the outset Andrew Coonan, solicitor, accepted the findings on his client’s behalf that MDMA and MDA was present in the sample.  He confirmed to the Committee that Mr. Foley had not requested the ‘B’ sample be analysed, as he was satisfied that the proper procedures had been followed in the taking of the sample. 

Evidence was heard from Dr Thomas Barragry, pharmacologist, as to the effects of MDMA and MDA when ingested.  Dr Barragry said that MDMA was a synthetic drug and a stimulant. It increases adrenalin in the brain causing an increased heart rate and a hallucinogenic effect. It is rapidly absorbed into the system and the effects are generally felt after 30 minutes and last for a minimum of 6 to 8 hours. The drug is not detectable in urine after 48 hours with 98% eliminated from the system within the first day and the remaining 2% on the second day. He said the levels of the banned substances found in the sample were high which would suggest the substance was ingested within the previous 24 hours.

Evidence was heard from B.J. Foley who said that he had a few drinks with his friends the evening before Limerick and later attended a nightclub at which he consumed further amounts of alcohol. He had no recollection of how he got home that night. He said he did not take any drugs then or previously and was not aware of how it got into his system and was surprised by the findings in the sample.  He said he felt very unwell the following morning but assumed it was due to the amount of alcohol he had consumed. He later went to the gym and had a swim after which he felt a little better. He said as he had a booked ride later that day he did not want to let anybody down so he rode on the day in question.

The Committee recalled Dr. Barragry to comment on the evidence given by B.J. Foley.  He said that the effects of taking the drug would be noticeable over alcohol, as alcohol was a depressant while MDMA and MDA (better known as Ecstasy) were stimulants.

In this case, there was evidence that the substance was taken in the previous 24 hours. The Committee was satisfied on the evidence that the ingestion of ecstasy would have a significant heightening effect which would be readily apparent to the consumer even in a case of “unintentional ingestion”.  The evidence also suggested serious actual and potential dangers posed to the rider and to others by the presence of such a substance in the system.

Having considered the evidence the Referrals Committee found B.J. Foley to be in breach of Rule 277 and imposed a six month disqualification, which they suspended for two years, provided:

(i) B.J. Foley does not commit any other similar offence under Turf Club rules and in the event that he does, the penalty can be activated at any time by the matter being referred to the Referrals Committee.  At that time the Committee may also impose any other penalty they feel is relevant in relation to any subsequent offence committed during the period of suspension.  The relevant date in respect of any subsequent offence is the date of commission thereof and not the date of activation, or any other date.

(ii) B.J. Foley agrees to be placed under the supervision of Dr. Adrian McGoldrick and complies with any medical requests made by Dr. McGoldrick.  They gave leave for the matter to be referred back to the Referrals Committee at any time, if Dr. McGoldrick is unhappy with the level of co-operation, and the Referrals Committee may at their discretion order that the above disqualification be imposed, if this occurs within a period of two years from today’s date.    

The Committee noted that this case was one of a sequence where claims of “unintentional ingestion” of a banned substance had been made by way of mitigation.  The Committee accepted that while such instances might occur rarely, it did not accept that all of the claims made in this sequence of cases could be truthful, noting that no jockey had ever presented admitting knowingly taking a banned substance, which would be the more probable cause of the presence of such a substance.  However, to be consistent with the outcome of previous cases where such evidence was given, Mr. Foley was dealt with in a similar fashion to other riders. 

For future cases, license holders and their legal representatives should note the following. Banned substance offences are strict liability offences, and that there is no obligation on the Committee to determine whether or not a jockey had taken a substance knowingly or unknowingly.  In cases where medical or other evidence suggests that the effect of the prohibited substance in question would probably be apparent to the rider, “unintentional ingestion” will not be available as a mitigating factor.  If a rider experiences unusual effects or sensations which ought to raise the issue of the possible consumption of illicit and banned substances, the proper course is to report the matter and/or take medical advice and not to ride until it is safe so to do.  Evidence suggesting risk taking, recklessness or negligence in continuing to ride in such circumstances will not be accepted in mitigation of penalty. 

With regard to future penalties, as the finding of a banned substance is a strict liability offence, it is highly unlikely that a Committee will issue a suspended penalty, save in exceptional circumstances. Riders must be encouraged to take a responsible attitude to such matters and be deterred from engaging in other types of conduct.

The case was presented by Denis Egan, Chief Executive of the Turf Club, Curragh, Co. Kildare.  B.J. Foley, qualified rider, was represented by Andrew Coonan, Solicitor, Naas, Co. Kildare.

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