A little discretionary diversion
There is no question about the 'race day' rule being in place and it being akin to a contractural term oif the implied contract participants have with racing administrators.
In the normal course the rule is a good one and the industry enforces it -- this notwithstanding that there is almost no detected breaches of swab limits across thousands of samples.
Trainers -- including the Aquinita8 -- would be stupid to present a horse to swab positive and we kniow that the 8 are not.
The issue here is about the 'race day' rule and whether it alone can be the basis of denying a right to work in a chosen profession -- I think not.
The situation with bicarb and tripart is complicated by the reality that both (as well as lasix and bute et al) can be used provided that on race day the concentrations are below agreed limits (including zero)
It is in this broader context that the observance and enforcement of the 'race-day' rule have an element of discretion which it may be argued is different when innocuous substances like bicarb and tripart are used in quantities that do not breach agreed limits.
There has been no suggestion in this matter of using bicarb to hide illicit substances.
To illustrate with a triviality -- a rule may deny trainers wearing red sox the right to present a horse to race -- and it could be enforced up to a point within the industry.
However if an infringement were to result in a trainer being denied a right to work, a broader legal framework might be engaged to preclude that.
The industry gets considerable protection from the likely cost of taking a civil action but it is likely in this case that it would be considered a just cause.
........to go back to an earlier point, if any 'treatment' had been given before the cutoff time but in a way that delayed the effect til race day, then the relevant test would be about breaching the race day swab limits and that test was presumably passed on all occasions.
In a way the debate is about the determined pursuit of an action on the day not the consequences of the action that the rule is intended to preclude.
[So far, in what looks like a game of lay down misere, there is only one player at the table and all his cards have been played bar one -- evidence that the horses suspected of being treated actually performed better than expected (presumably none). The moot point is about the game being moved to a different table and some different cards being played. It would be a pity to see RVL 'win' simply because the 'offenders' cannot afford toplay their hand.]