For example (without using names), one may look at the current 'scandal' regarding Glaucine involving two high profile trainers (and others). In this case, management has indicated it will wait until due process is played out before deciding what, if any sanctioning should take place, yet recently an individual caught in the Meadowlands out-of-competition policy was excluded without due process. Is this a case of playing favoritism?
There is a big difference between the Glaucine incident and the other case involving testing done in Hong Kong. The Glaucine positives were the result of post-race testing done by the NYGC, a governmental agency. Since a state agency is in charge of testing and establishing the rules all racetracks in the State of New York must operate under, the constitution guarantees due process. In the case of the Gural tracks' out of competition testing and exclusionary practices, these are house rules and thus not guaranteed the right of due process, though one would hope those found to be in violation would have the opportunity to speak on their own behalf before being banished.
This is similar to the constitutional right of free speech which is commonly brought up when someone is fired for speaking unpopular and often controversial thoughts. What people fail to realize is the constitution states: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.". Note it is the government shall not be allowed to deny a person of free speech, an employer has the right to fire someone for speaking their mind and in the now infamous Dixie Chicks incident, the public punished the musical group for comments the lead singer made. The same is with due process. Due process is not guaranteed on private property.
One may and it has been argued since the NJRC licenses the Meadowlands, they should not be able to exercise private property rights and exclude people but that argument failed in a court challenge over the exclusion of another trainer; the judge in that case ruled the Meadowlands is private property. In addition, when applying to race at the Meadowlands, the trainer agrees to their out-of-competition testing policies.
What about the right to someone being able to earn a living? A ruling by a racing commission can ban someone from all racetracks in the state and conceivably elsewhere with reciprocity thus another reason why due process is important. However, being excluded from the three Gural tracks still allows a licensee to race at other tracks within the state and and elsewhere as it will become obvious once the eastern Pennsylvania tracks open up, many trainers will not be looking to race at Gural's tracks anyway.
Don't get me wrong. I wish Gural's policies for exclusion were spelled out to ensure everyone who may run afoul of the rules may be assured of being treated fairly under the policy but the fluidity of new drugs being uncovered requires the policy to be a living breathing document, subject to change as different situations arise. To assure all of justice being handed down fairly, it would be a positive step if Jeff Gural would hire an independent monitor to ensure the policy was administered fairly.
But why should a track operator need an exclusion rule and its own out of competition policies in the first place? It is obvious the current drug testing procedures by racing commissions is ineffectual, largely due to limited budgets which have commissions only testing for certain substances while ignoring others. The lack of financial resources also limits the development of new tests to keep ahead or even with the cheaters. In addition, racing commissions are often to quick to make deals rather than defending decisions in the courts. Also, while constitutionally guaranteed, the due process afforded to those charged can be abused, delaying the imposition of penalties for years. An exclusionary process, albeit with its flaws, seems to be the only way to keep the playing field as level as possible for the customer.
Until racing develops a comprehensive standard policy towards medication violations and out of competition testing with a means for justice to be handed down in an expedited manner with due process, it seems policies such as the Gural out of competition testing policy is the only tool in the tool box which works.