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Challenge to HISA Denied by Ruling in Texas Case

Claims brought by the National HBPA to enjoin enforcement of HISA were dismissed.

 

Claims brought in a Texas federal court to stop the Horseracing Integrity and Safety Act from going forward were dismissed on March 31 by U. S. District Judge James Wesley Hendrix.

The lawsuit, filed by the National Horsemen’s Benevolent and Protective Association and joined by affiliated HBPAs, sought to have the court enjoin enforcement of the Act as unconstitutional. The HBPAs argued that HISA gave unlawful regulatory power to a private entity it created, the Horseracing Integrity and Safety Authority.

After finding the HBPAs have standing to bring the case and that an actual controversy exists, Hendrix also found there is no disagreement about the material facts, leading the way to a decision based on the application of law.

 

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Louisiana Horse Industry Under Attack from Unconditional & Unfunded Congressional Mandate, Attorney General Jeff Landry Fights Back

Louisiana Joins Lawsuit Filed in Federal Court to Protect State from Overreaching, Unaccountable Horseracing Integrity & Safety Authority

BATON ROUGE, LA – Fighting to protect state sovereignty, Attorney General Jeff Landry has joined Louisiana to a lawsuit challenging the constitutionality of the Horseracing Integrity & Safety Act of 2021 (HISA) – a measure ramrodded into the COVID relief bill that cedes much regulatory and taxation power of the State to an unaccountable nongovernmental entity.

“HISA requires the unelected Authority to exercise regulatory authority over horseracing in Louisiana, mandates our State to assist the Authority, and forces us to choose between remitting funds to the Authority or losing some of our powers of taxation,” explained Attorney General Landry. “This violation of the Tenth Amendment would have devastating effects to our State and the thousands of Louisianans in the horse industry.”

“While I believe that horses should be treated humanely and horseracing should be held to the highest degree of integrity, I know that more bureaucracy from an overreaching and unaccountable fiefdom is not the way to achieve these goals,” continued Attorney General Landry. “We should continue our Legislature’s decades-long delegation of police powers over the industry to the Louisiana State Racing Commission, knowledgeable participants who have collected significant fees and taxes while enforcing our statutes and regulations concerning the health and safety of equine athletes and all other industry participants throughout Louisiana.”

Attorney General Landry’s litigation was met with swift praise and appreciation from those who ply their trade – directly and indirectly – in owning, breeding, training, grooming, racing, and caring for horses in Louisiana.

“The actions of Attorney General Jeff Landry in opposing the HISA law demonstrates his genuine concern for the well-being of the Louisiana horse racing and breeding industry and its participants throughout the State as well as our equine athletes,” said Benard Chatters, the President of the Louisiana Horsemen’s Benevolent & Protective Association (LAHBPA).

“The Louisiana Horsemen appreciate and respect the unwavering support of Attorney General Jeff Landry, which he has consistently shown to the Louisiana horse racing and breeding industry throughout our State,” said Ed Fenasci, the Executive Director of the LAHBPA.

New Integrity Rules Coming to Horse Racing; Frequently Asked Questions Regarding HISA

The Horseracing Integrity and Safety Act was signed into law on Dec. 27, 2020 and focuses on ensuring the integrity of Thoroughbred horse racing and on the safety of Thoroughbred racehorses and jockeys by requiring national, uniform safety standards that include anti-doping and medication control and racetrack safety programs.

 

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Board and Standing Committee of HISA Announced

The Horseracing Integrity and Safety Authority’s nominating committee announced its board of directors and standing committees. The process was led by Nancy Cox, University of Kentucky vice president for land-grant engagement and dean of the College of Agriculture, Food and Environment, and Leonard Coleman, former president of the National League of Professional Baseball Clubs.

The nine-person board includes five members from outside of the Thoroughbred industry and four industry representatives. The two chairs of the Authority’s standing committees serve on the board of directors, and the board is expected to select the board chair at its first meeting. The board of directors includes:

  • Steve Beshear, Kentucky (independent director)
  • Leonard Coleman, Florida (independent director)
  • Ellen McClain, New York (independent director)
  • Charles Scheeler, Maryland (independent director)
  • Adolpho Birch, chair of the Anti-Doping and Medication Control standing committee, Tennessee (independent director)
  • Joseph De Francis, Maryland (industry director)
  • Susan Stover, chair of the Racetrack Safety standing committee, California (industry director)
  • Bill Thomason, Kentucky (industry director)
  • DG Van Clief, Virginia (industry director)

The members of the Anti-Doping and Medication Control Standing Committee are:

  • Adolpho Birch, chair (Tennessee, independent director)
  • Jeff Novitzky, Nevada (independent member)
  • Kathleen Stroia, Florida (independent member)
  • Jerry Yon, Florida (independent member)
  • Jeff Blea, California (industry member)
  • Mary Scollay, Kentucky (industry member)
  • Scott Stanley, Kentucky (industry member)

The members of the Racetrack Safety Standing Committee are:

  • Susan Stover, chair (California, industry director)
  • Lisa Fortier, New York (independent member)
  • Peter Hester, Kentucky (independent member)
  • Paul Lunn, North Carolina (independent member)
  • Carl Mattacola, North Carolina (independent member)
  • Glen Kozak, New York (industry member)
  • John Velazquez, New York (industry member)

 

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Oklahoma Attorney General Files Lawsuit Challenging HISA

Racing at Oklahoma’s Remington Park | Dustin Orona Photography

A federal lawsuit spearheaded by the state of Oklahoma to try and get the Horseracing Integrity and Safety Act (HISA) voided for alleged constitutional violations was filed Monday, meaning there are now two active legal challenges in the United States court system attempting to derail the regulatory powers of the HISA “Authority” prior to that regulatory body’s planned 2022 phase-in.

According to a press release issued by the state attorney general’s office in Oklahoma, the suit is challenging that “HISA gives a private corporation broad regulatory authority over Oklahoma’s horse racing industry, and does so with no funding mechanism, forcing the financial burden onto states. If a state refuses to pay, the state’s legislature and executive agencies would be punitively banned from collecting taxes or fees to enforce their own state regulations.”

The complaint demanding declaratory judgment and injunctive relief was filed Apr. 26 in United States District Court (Eastern Division of Kentucky) even though most of the plaintiffs are based in Oklahoma or West Virginia. The lawsuit’s timing coincides with the start of the GI Kentucky Derby week festivities in that state.

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NTRA Statement on the Horseracing Integrity and Safety Act

  • March 17, 2021

    “HISA, a well-crafted and comprehensive piece of legislation, creates the national framework that addresses our industry’s critical need for consistent, forceful anti-doping control and equine safety standards. The NTRA Board of Directors, which consists of representatives from tens of thousands of breeders, owners and trainers from more than 40 states, as well as thousands of horseplayers and virtually every major racetrack in the United States, voted to support HISA. We plan to work tirelessly on behalf of our members and a broad array of interested parties and stakeholders to support HISA’s successful launch in July 2022.”

    Alex Waldrop,

    President and Chief Executive Officer,

    National Thoroughbred Racing Association

     

    The NTRA is a broad-based coalition of American horse racing interests consisting of leading Thoroughbred racetracks, owners, breeders, trainers, horseplayers, advance deposit wagering companies, and affiliated horse racing associations, charged with increasing the popularity of horse racing and improving economic conditions for industry participants.

     

    RESPONSE

     

    In 2020, the U.S. Congress overwhelmingly passed, and the President signed into law, the Horseracing Integrity and Safety Act (HISA). Through this landmark legislation, HISA recognizes and empowers the Horseracing Integrity and Safety Authority (Authority) to protect the safety and welfare of Thoroughbred horseracing’s most important participants—its horses—by delivering commonsense medication reforms and track safety standards.

     

    HISA has broad support from the Thoroughbred industry, including: organizations such as the Breeders’ Cup, National Thoroughbred Racing Association, The Jockey Club, The Jockeys’ Guild, American Association of Equine Practitioners and the Thoroughbred Owners and Breeders’ Association; the nation’s leading racetracks, including Churchill Downs, Del Mar Thoroughbred Club, Gulfstream Park, Keeneland, The Maryland Jockey Club, Monmouth Park, The New York Racing Association and Santa Anita; leading horsemen’s organizations such as the Thoroughbred Horsemen’s Association and the Thoroughbred Owners of California; prominent Thoroughbred owners Barbara Banke, Antony Beck, Arthur and Staci Hancock, Fred Hertrich, Barry Irwin, Stuart S. Janney III, Rosendo Parra and Vinnie Viola; leading Thoroughbred trainers Christophe Clement, Neil Drysdale, Janet Elliot, Claude “Shug” McGaughey, Bill Mott, Todd Pletcher and Nick Zito; grassroots organization Water Hay Oats Alliance, with more than 2,000 individual members; international organizations the International Federation of Horseracing Authorities and The Jockey Club of Canada; and prominent animal welfare organizations American Society for the Prevention of Cruelty to Animals, Animal Wellness Action and the Humane Society of the United States.

     

    The National Horsemen’s Benevolent and Protective Association (HBPA), along with several of its state affiliates, seeks to upend this historic and bipartisan effort to protect Thoroughbred horses and ensure the integrity of horseracing. The HBPA has recently filed a baseless lawsuit in federal court in Texas, seeking to declare HISA unconstitutional on its face. Setting aside its fatal threshold deficiencies—including the lack of any concrete or imminent harm—the HBPA’s lawsuit is meritless. HISA is constitutionally and legally sound. On behalf of a broad spectrum of organizations underlying the sport of Thoroughbred horseracing, we offer the following responses to the various claims by HBPA.

     

    1. HBPA Claim: HISA violates the constitutional “non-delegation doctrine.”

    Reality: HISA does not violate the non-delegation doctrine because the United States Supreme Court has long recognized that Congress may rely on private entities so long as the government retains ultimate decision-making authority as to rules and enforcement. HISA recognizes and empowers the Authority to propose and enforce uniform national anti-doping and equine safety standards, but only upon review, approval and adoption by the Federal Trade Commission (FTC). Though this is a first for the Thoroughbred horseracing industry, HISA’s structure is not new. HISA follows the FINRA/SEC model of regulation in the securities industry, and, like that model, is constitutional because any action the Authority undertakes is subject to the FTC’s approval and oversight.

     

    2. HBPA Claim: The HISA runs afoul of the Appointments Clause.

    Reality: The Authority is a private entity, independently established under state law, and recognized by HISA. As such, it is simply not subject to constitutional restraints on appointments (or removal) of its Board members. Indeed, any such claim is at war with HBPA’s non-delegation theory premised on the fact that the Authority is a private entity. On the one hand, the HBPA claims that the Authority cannot take action because it is private entity, but then argues, on the other hand, that the Authority cannot appoint its own Board members because it is effectively a public entity. These two HBPA arguments are in conflict, but have one important thing in common: they are both wrong.

     

    3.  HBPA Claim: HISA violates due process protections.

    Reality: The HBPA’s due process theory also falls flat. Though the HBPA complains of equine industry participants regulating their competitors, a strong bipartisan majority of the House and the Senate made clear in HISA that a majority of the Authority’s Board members must be from outside the equine industry. To be sure, a minority of the Authority’s Board members will have industry experience and engagement. But it is difficult to understand how that statutory recognition of the value of informed voices constitutes a deprivation of due process. What’s more, with respect to the minority industry Board members, HISA expressly provides for equal representation among each of the six equine constituencies (trainers, owners and breeders, tracks, veterinarians, state racing commissions, and jockeys). Furthermore, the committee tasked with nominating eligible candidates for Board and standing-committee positions is made up of entirely non-industry members. HISA further imposes broad conflicts-of-interest requirements to ensure that all of its Board members (industry and non-industry alike) as well as non-industry standing committee members (not to mention their employees and family members) are required to remain free of all equine economic conflicts of interest.

     

    Beyond these robust safeguards, established precedent confirms what common sense indicates: even when a private entity is engaged in the regulatory process, agency authority and surveillance protect against promotion of self-interest. Under HISA, for example, the FTC has the authority to decline the Authority’s proposed rules and overrule any sanctions—ensuring that neither the Authority nor the individuals making up its Board can use their position for their own advantage in violation of constitutional restraints.

     

    *****

    Contrary to HBPA’s hyperbole, HISA is neither unprecedented nor unconstitutional. HISA emulates the long-established FINRA/SEC model, with even greater protections for all stakeholders. It is disappointing that the HBPA—an entity whose mission is supposedly the welfare of horses and horsemen—would seek to undo much needed reforms to protect the industry’s participants.

NHBPA, State Horsemen’s Groups File Suit To Halt HISA; Jockey Club ‘Confident Law Is Constitutionally Sound And Legal’

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The National Horsemen’s Benevolent and Protective Association, together with state affiliates in Arizona, Arkansas, Indiana, Illinois, Louisiana, Nebraska, Oklahoma, Oregon, Pennsylvania, Washington and West Virginia (Mountaineer) have filed a federal civil suit in an attempt to put the brakes on the Horseracing Integrity and Safety Act (HISA). The suit, filed in the U.S. District Court for the Northern District of Texas, names the Federal Trade Commission and several of its employees, as well as the people tasked with forming the Nominating Committee for the new federal authority.

The suit seeks to have HISA and a number of its elements declared unconstitutional, to enjoin defendants from taking any action to implement HISA, as well as nominal damages of $1 and compensatory damages of any fees charged to horsemen by the new authority.

The lawsuit is being handled by The Liberty Justice Center, a non-profit legal center “that represents clients at no charge and was founded to fight against political privilege,” according to its press release about the case.

 

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Horseracing Integrity And Safety Act Signed Into Law

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The Horseracing Integrity and Safety Act is now law.

The legislation passed by the Senate on Dec. 21 that will put anti-doping/medication control and safety programs under the umbrella of one independent, non-governmental Authority, the Horseracing Integrity and Safety Act was part of a 5,500-plus page, $2.3 trillion bipartisan government funding bill that included $900 billion in coronavirus relief extending unemployment benefits and providing up to $600 in cash payments to individuals. President Donald Trump, whose Treasury Department officials helped negotiate the package, had threatened to veto the bill, in part demanding that the $600 individual benefits be increased to $2,000.

On Sunday night, Trump signed the bill into law.

 

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AAEP Board Votes to Support Horseracing Integrity & Safety Act

Oct 16, 2020

On the recommendation of its Racing Committee, the American Association of Equine Practitioners board of directors voted this week to support the Horseracing Integrity & Safety Act (H.R. 1754/S. 4547). The legislation’s chief goal is to create uniform safety and medication standards in all U.S. racing jurisdictions.

“Uniformity of rules is essential to protecting the safety of the racehorse and ensuring the integrity of the sport,” said AAEP President Dr. David Frisbie.

The AAEP’s position of support is principally based on the qualifications of the individuals chosen to serve on the HISA Nominating Committee, including equine industry leaders Dr. Jerry Black and Dr. Nancy Cox, who will select the members of the board of directors and the standing committees of the Horseracing Integrity & Safety Act Authority. However, for the horse to be best served, the AAEP will continue to advocate for additional veterinary representation on the HISA board and committees beyond the single position currently designated for each.

“In the previous version of the bill, the AAEP was a strong proponent for the governance structure to include individuals with the requisite expertise needed to capably address anti-doping and therapeutic medication regulation,” said Dr. Jeff Berk, AAEP immediate past president and Racing Committee chair. “The composition of the Authority Nominating Committee gives us confidence that the needed scientific expertise for these important positions will be considered, but we believe the breadth of knowledge needed to successfully protect equine athletes requires additional individuals.”

Regarding the race-day administration of furosemide (Lasix), the AAEP’s position continues as one of support, as the medication remains the most efficacious treatment for exercise-induced pulmonary hemorrhage (EIPH) in the horse.

However, in 2019, a coalition of 20 racetracks, including hosts of Triple Crown races, along with numerous racing jurisdictions committed to restricting administration of furosemide on race day, independent of federal legislation.

“We are pleased to see in the revised legislation that the Authority will convene an advisory panel comprised of horse racing anti-doping and medication control experts to study race-day furosemide, including its impact on equine health and the integrity of competition,” added Dr. Scott Hay, AAEP president-elect and a racetrack practitioner. “Investigating effective management strategies for EIPH which do not require race-day medication administration has been a central goal of the AAEP’s Prescription for Racing Reform developed five years ago.”

About AAEP

The American Association of Equine Practitioners, headquartered in Lexington, Ky., was founded in 1954 as a non-profit organization dedicated to the health and welfare of the horse. Currently, AAEP reaches more than 5 million horse owners through its over 9,000 members worldwide and is actively involved in ethics issues, practice management, research and continuing education in the equine veterinary profession and horse industry.

National HBPA Opposes Horseracing Integrity and Safety Act of 2020

Statement from the National HBPA Board of Directors

On September 9, Senator Mitch McConnell (R-KY) introduced the Horseracing Integrity and Safety Act of 2020 (HISA) with Senator Kirsten Gillibrand (D-NY). The bill takes regulatory authority from state racing commissions and creates a new regulatory body responsible to the Federal Trade Commission. The new federal authority would establish and enforce a national racing medication and track safety program for the horse racing industry. Senator McConnell announced his legislation was a compromise within the industry, but there can be no compromise without consulting the views of the National Horsemen’s Benevolent and Protective Association (HBPA), which represents close to 30,000 race horse owners and trainers.

The National HBPA has reviewed the proposed legislation and affirmatively states at this time we oppose the HISA.

  • Banning Lasix before studying it “is putting the cart before the horse,” as Representative Kurt Schrader (D-OR), a veterinarian, stated during the September 9 markup of the companion legislation in the U.S. House Energy and Commerce Committee. The legislation works to phase out an important, protective medication, commonly known as Lasix, over the next three years. Lasix is the only known medication to treat a condition called Exercise Induced Pulmonary Hemorrhage (EIPH), or bleeding in the lungs. EIPH threatens the health and wellbeing of many racehorses and until an alternative treatment is developed, the National HBPA believes that Lasix should be utilized on race day. Science and national veterinary leadership continue to support the administration of Lasix on race-day.
  • The new authority regulating horseracing nationwide will be governed by a board with a majority of members having no experience in the horseracing industry. And the board will be handpicked by the same elite interest groups pushing this legislation.
  • The legislation will be paid for on the backs of our membership. Unlike other legislation, Congress has not authorized any federal dollars to be spent on the proposed authority. The new authority will end up levying millions of dollars in fees on horsemen to pay for the new regulatory scheme. Given the economic hardships resulting from the COVID-19 pandemic, these new fees will likely put many small business owners and operators out of business.

The National HBPA and its affiliates remain strongly committed to the welfare of our human and equine athletes and will remain persistent in its efforts to achieve industry reforms that are fair and beneficial for all.

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