Former Sydney Turf Club chairman Bruce McHugh has boldly gone where no man has gone before – at least in recent times.
He has stepped into an Australian courtroom to challenge what the thoroughbred industry considers sacrosanct – that mares can be bred only by being served by a stallion if the progeny are to ever see a racetrack.
McHugh, once Australia’s biggest bookmaker, is taking a crack at the industry’s restrictions on artificial insemination.
He argues that denying the use of artificial insemination constitutes a restraint on trade under Australia’s Trade Practices Act.
There is no question that live cover of mares is central to the thoroughbred industry’s business model.
Countless millions have been invested in the industry based around the fact that its top stallions must personally service mares.
A win for McHugh in the six-week case, before Justice Alan Robertson, would have far-reaching consequences.
The precedent set could flow to other court jurisdictions around the world, setting off challenges that could see the live-cover requirement collapse like a house of cards.
It will be a fascinating fight as the issues are laid bare in a Sydney courtroom.
Fears within the Australian industry surround the potential loss of export trade, as major overseas thoroughbred markets would accept thoroughbreds for racing and breeding only if produced through live cover by a stallion.
Concerns have also been expressed over the potential narrowing of the thoroughbred gene pool if artificial insemination was permitted.
McHugh’s position is simple. He wants to be able to produce racehorses through artificial insemination and believes the industry’s rules represent a constraint of trade.
McHugh’s argument is that by banning the use of artificial insemination, powerful interests maintain a stranglehold on the lucrative racing industry.
He says allowing artificially bred horses to race would increase competition, and make the industry more affordable to smaller breeders.
The industry counters that the ban preventing artificially bred thoroughbreds from racing also applies in other major racing countries, and lifting the ban would devastate the Australian industry in international markets.
Australia would end up with an insular thoroughbred industry that was a shadow of its former self.
There is no doubt that millions are at stake.
As McHugh’s counsel, Ian Tonking, points out, major studs such as Coolmore, Darley and Arrowfield make millions from northern hemisphere shuttle stallions, with service fees of up to $A200,000.
Under such circumstances, ownership of a top stallion was hugely profitable – provided it was not challenged by artificial insemination.
The live-cover requirement means large-scale commercial stud farms effectively had a “licence to print money”, Tonking told the court.
Ownership of such stallions was beyond the pockets of most who aspired to have a slice of the industry.
In opening the case, he said the live-cover requirement had no bearing on the conduct of racing on the track, but much to do with “the playing field that’s far from level, off the track”.
Smaller breeders – the vast majority in Australian thoroughbred breeding are small operators with an average of three mares – would benefit from not having to ship their mares to stud, and would also be able to gain access to semen from top horses around the globe, Tonking argues.
McHugh does not put much stock in the central argument from the Australian thoroughbred industry that it would become a world pariah if articificial insemination was allowed.
He has proposed a separate registry for artificially bred thoroughbreds. France, he has pointed out, allows such separate registries and it did not appear to have damaged its industry.
The whole debate is fascinating. The arguments offered by McHugh are hard to challenge.
Yes, relaxing the live-cover rules would give smaller breeders access to stallions around the globe. It would undoubtedly save them money.
Australia’s ban on thoroughbred artificial insemination goes back to at least the 1940s. The practice was banned to prevent any skulduggery, and to ensure that mare owners got the stallion service for which they were paying.
However, in the modern era of DNA identification, that argument has long since been buried.
Does the requirement for live cover effectively create a restraint of trade? If you’re a smaller breeder unable to afford a top stallion’s stud fee, but able to afford a straw or two or semen from a similarly-rated sire, it is hard to argue otherwise.
But perhaps the heart of the argument lies slightly to the side of this premise. Should the thoroughbred industry have the right to organise its sport and set the rules as it sees fit?
On that basis, McHugh could get on with his artificial insemination and set up his own thoroughbred industry. Just as, if you don’t like the rules of Formula One car racing, go off and set up your own international racing series.
Whatever the outcome, the case will prove to be a rare sight. The legal costs are certain to stretch into the millions of dollars on both sides.
About 40 witnesses are expected to give evidence, some by video from Europe.
The decision will make fascinating reading.