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.”
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.
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.
by Natalie Voss
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.
by Ray Paulick
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.
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.”
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.
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.
Congressmen Paul D. Tonko and Andy Barr’s bipartisan national horse racing reform bill, H.R. 1754, the Horseracing Integrity and Safety Act, passed the U.S. House of Representatives on Tuesday. The bill would designate the Horseracing Integrity and Safety Authority to design and implement uniform national horse racing medication and racetrack safety standards.
“After nearly six years working to advance this bipartisan legislation to modernize horseracing in the United States, we are at long last rounding the final turn,” Congressman Tonko said. “Our Horseracing Integrity and Safety Act puts the health and well-being of our equine athletes and jockeys firmly at the center of the sport, and delivers commonsense medication and track safety standards that will lift this noble sport to higher standards of integrity and safety. These long overdue reforms will help restore public trust in the sport and put it on a path to a long and vital future, supporting countless jobs and driving economic activity in communities across our nation. I thank my longtime collaborator and friend, Congressman Barr, for leading with me in this effort to restore integrity to this sport of kings. I urge my colleagues in the Senate to advance their companion legislation without delay and deliver it swiftly to the President to sign into law.”
“With today’s HISA passage in the House, we continue our momentum and move one step closer toward historic reform for the horse racing industry,” said Congressman Barr. “This legislation, developed through a highly deliberative and bipartisan process, will ensure the safety of our equine athletes and increase the popularity, public confidence, and international competitiveness of the sport. I want to thank my House colleagues for supporting this legislation which will usher in a new era for this great Kentucky, and great American, industry.”
The bill approved by the House today also has companion Senate legislation introduced recently by U.S. Senate Majority Leader Mitch McConnell (R-KY) and U.S. Senators Kirsten Gillibrand (D-NY), Martha McSally (R-AZ), and Dianne Feinstein (D-CA).
U.S. Senate Majority Leader Mitch McConnell: “Our bipartisan legislation to recognize a national standard for Thoroughbred racing is receiving support from all corners. Now, it’s earned the approval of the House. Today’s vote was another important step toward protecting our beloved sport for the horses, jockeys, trainers, breeders, and fans. I’d like to congratulate Congressmen Andy Barr and Paul Tonko and their colleagues for championing this legislation in the House. I look forward to their continued support as work continues to pass this bill into law.”
Alex Waldrop, President And CEO of the National Thoroughbred Racing Association: “Today’s historic passage of the Horseracing Integrity and Safety Act (HISA) by the U.S. House of Representatives by an overwhelmingly favorable bipartisan vote reflects broad industry support for much-needed national standards for anti-doping and medication control as well as racetrack safety. Today’s action would not have been possible without the longtime support of Representatives Paul Tonko (D-NY) and Andy Barr (R-KY) who have demonstrated time and again on key issues as diverse as internet wagering and tax reform, they understand the importance of our multi-billion-dollar industry that accounts for nearly 500,000 jobs nationwide.”
Marty Irby, executive director at Animal Wellness Action: “After nearly six years of pressing the House to pass anti-doping legislation we’re thrilled to see our efforts and advocacy have brought the elimination of doping in U.S. horseracing closer to the finish line. We applaud Reps. Tonko and Barr for their tremendous leadership, H.R. 1754 puts the welfare of the horse at the center of the enterprise, and we call on the Senate to saddle up and swiftly pass this measure that will ensure the future of the sport.”
New York Racing Association, Inc. (NYRA) President and CEO Dave O’Rourke: “NYRA has long supported a national approach to medication control and anti-doping across the sport of horse racing. The safety and welfare of the athletes competing at NYRA tracks is our highest priority, which is why NYRA supports the Horseracing Integrity and Safety Act and urges quick consideration by Congress.”
Staci Hancock, Managing Member of the Water Hay Oats Alliance: “The members of WHOA applaud Congressmen Paul Tonko and Andy Barr for their bipartisan leadership in working with all segments of our industry. Today’s passage of the Horseracing Integrity and Safety Act marks a much anticipated and long awaited day for our horses and horse racing. WHOA’s grassroots efforts have been focused on enacting legislation for drug free racing under the independent oversight and management of the United States Anti-Doping Agency (USADA). The passage of HISA in the House of Representatives today is an important milestone on the way to setting these reforms into law.”
Sara Amundson, president of the Humane Society Legislative Fund: “With 8.5 horses dying on average at the races every week, congressional intervention is imperative to protect these magnificent animals. In record time, Chairman Pallone, Reps. Tonko and Barr have led passage of the Horseracing Integrity and Safety Act on the House floor. We urge the Senate to swiftly pass this bill to end equine racehorse doping and increase track safety. As horses continue to race, we owe them every opportunity to cross the finish line healthy and intact for another day.”
United States Anti-Doping Agency CEO Travis T. Tygart: “The introduction of the Horseracing Integrity and Safety Act marks a historic moment for Thoroughbred horse racing, and USADA is honored and humbled to carry out the anti-doping responsibilities detailed in the Act, implementing uniform rules through our independent model in service of clean competition. As with Olympic sport, one set of rules, enforced independently and uniformly, is the bedrock of any meaningful anti-doping program. This game-changing, bipartisan legislation will protect the health and safety of equine athletes and provide clean competitors a level playing field.”
Thoroughbred Owners & Breeders Association President Dan Metzger: “Passage of the Horseracing Integrity and Safety Act is in the best interests of owners and breeders, would enhance equine health and safety, and would bring much-needed uniformity to our industry.”
Doug O’Neill, owner of Doug O’Neill Racing Stable: “Racing needs the Horseracing Integrity and Safety Act to create a vibrant national anti-doping system for Thoroughbred racing throughout the United States and to mandate a meaningful racetrack safety standards program for U.S. racetracks. Both will protect our equine athletes and provide superb integrity standards.”
Barry Irwin from Team Valor International: “Passage of the Horseracing Integrity and Safety Act will bring a higher level of integrity and safety to horse racing. Having our sport contested on a level playing field with the aid of USADA is especially meaningful to me, and it’s something I’ve been promoting for more than 16 years.”
Trainer, Janet Elliot: “It is time for U.S. racing to join the rest of the world and enact uniform international rules and standards and abolish the use of race-day medication. Eliminating performance-enhancing drugs is imperative for the health and safety of our equine and human athletes.”
Joe Harper, CEO of Del Mar Thoroughbred Club: “Our sport needs the uniformity that the Horseracing Integrity and Safety Act (HISA) will provide. The Del Mar Thoroughbred Club is unwavering in its commitment to the welfare of our human and equine athletes. Our goal is to ensure our sport is conducted at the highest levels of safety and integrity, and the medication and safety reforms within the HISA will help the industry meet and exceed that goal.”
Ted Kuster from Shawhan Place: “The leadership provided by the Horseracing Integrity and Safety Act is a must for American racing to survive. Rules and regulations must be the same in all states, and this act will ensure that happens. I would like to thank Rep. Barr for his perseverance in getting this bill where it is today.”
Dr. Riddle from Rood & Riddle: “In addition to its emphasis on safety, fairness, and integrity, the Horseracing Integrity and Safety Act represents a step in the direction of nationwide uniformity and cooperation, which our industry greatly needs.”
Hall of Fame trainer Shug McGaughey: “I have had the good fortune to win the Kentucky Derby, Belmont Stakes, nine Breeders’ Cup races, four Travers stakes, and an Eclipse Award as the outstanding trainer in North America, so I know a little about U.S. horse racing. The HISA, which includes racetrack safety to further enhance the anti-doping program in the Horseracing Integrity Act, will bring meaningful standards to help protect Thoroughbred racehorses and to safeguard the integrity and future of our sport.”
Antony Beck President and CEO of Gainesway Farm: “As an owner and breeder, nothing is more important to me than the welfare of my horses. Horses are the heart of this industry, and they deserve our respect. There is no place in our sport for race-day medication, and the Horseracing Integrity and Safety Act will ensure our horses race medication-free.”
Cathy Liss, president of Animal Welfare Institute: “The senseless loss of life occurring on racetracks must stop now,” said Cathy Liss, president of AWI. “The Horseracing Integrity Act would provide much-needed oversight and directly improve the welfare of racehorses in the United States. We thank Reps. Tonko and Barr, as well as Sens. McConnell, Gillibrand, McSally, and Feinstein, for working to see this legislation to the finish line, and we urge the Senate to quickly send this bill to the president’s desk.”
Horseracing’s Storied Organizations
CHURCHILL DOWNS INCORPORATED: “It is critical to the future of Thoroughbred racing that the safety and integrity of our sport be governed by world-class, uniform standards across the United States. The leadership of Senator McConnell and Congressman Barr has been instrumental in our shared goal of bringing the Thoroughbred industry together to achieve this goal.”
KEENELAND: “This groundbreaking legislation and the collaborative effort behind it speaks to the commitment those of us in the Thoroughbred industry have to establish uniform safety and integrity standards across the U.S. and bring American racing in line with international guidelines.”
THE JOCKEY CLUB: “The Jockey Club has long pursued a collaborative solution within our industry to establish national reforms ensuring clean competition and improved safety for horses and humans alike. We strongly believe that the Horseracing Integrity and Safety Act is vital to developing uniform and effective medication and safety regulations that will enhance the integrity and safety of American horse racing and improve the sport.”
BREEDERS’ CUP LIMITED: “This legislation gives us an opportunity to make the single most significant and far-reaching safety and integrity enhancement in the history of Thoroughbred racing by bringing our sport into the 21st century and protecting its future for generations to come.”
1/ST RACING: “At 1/ST RACING our priority is to ensure the safety of our horses and riders and we believe that the investment into equine health and safety is not on only the right thing to do, it is crucial to the future of Thoroughbred racing. The Horseracing Integrity and Safety Actrecognizes that industry stakeholders including the owners, trainers, breeders, jockeys, and racetrack operators must be unified toward a new standard of equine health, safety, and welfare.”
Anti-Doping and Animal Welfare Groups
U.S. ANTI-DOPING AGENCY: “The introduction of the Horseracing Integrity and Safety Act marks a historic moment for thoroughbred horse racing. This game-changing, bipartisan legislation will protect the health and safety of equine athletes and provide clean competitors a level playing field. USADA is honored and humbled to carry out the anti-doping responsibilities detailed in the Act, implementing uniform rules through our independent model in service of clean competition. As with Olympic sport, one set of rules, enforced independently and uniformly, is the bedrock of any meaningful anti-doping program.”
WATER HAY OATS ALLIANCE: “Without federal legislation mandating that USADA enact ‘clean’ drug rules, reliable testing, qualified labs and strict penalties for violators, the sport of American horse racing faces an uncertain future. With Senator McConnell’s leadership and the continued efforts of Representatives Andy Barr and Paul Tonko in the House, WHOA’s members look forward to the day when our great sport can rebuild its reputation, protect our beloved horses and their jockeys, and reclaim racing’s place as one of America’s top spectator sports.”
HUMANE SOCIETY OF THE UNITED STATES: “We cannot continue to look the other way when a racehorse is severely injured or killed during training or a race. This measure will advance necessary reforms that will make or break horseracing in the United States.”
DALE ROMANS, All-time Win Leader at Churchill Downs: “My colleagues and I love this game and love our horses. We want them both to flourish with safety and integrity. It is time for me to announce I support the Horseracing Integrity and Safety Act (HISA) in order to unify our medication control under the aegis of USADA, and for our sport to develop and enforce one rulebook of standards and procedures for the health and safety of horse and rider.”
TODD PLETCHER, Two-time Kentucky Derby Winning Trainer: “I thank you for your leadership and vision in sponsoring the Horseracing Integrity and Safety Act (HISA) to reform anti-doping practices for Thoroughbred racing and to create a meaningful program of racetrack safety standards to better protect and nurture our equine athletes. You will have my support for this initiative, which is both critical and timely for the Thoroughbred industry.”
JANET ELLIOT, Hall of Fame Trainer: “It is high time that America joins with the rest of the racing world, and develops uniform international rules and standards. It is absurd that each state in the country has its own set of rules. In order to have top class racing we must work together to abolish all race day medication. The elimination of performance enhancing drugs is imperative for the health and safety of our equine and human athletes, and the long-term health of the breeding industry. I support the efforts made by WHOA and wish to see the progression of the Horseracing Integrity and Safety Act.”
ROOD AND RIDDLE EQUINE HOSPITAL: “In addition to its emphasis on safety, fairness, and integrity this bill represents a step in the direction of nationwide uniformity and cooperation, which our industry greatly needs.”
HAGYARD EQUINE MEDICAL INSTITUTE: “Hagyard supports independent oversight of uniform laboratory standards, testing, and accountability. A uniform set of rules to govern horse racing’s therapeutic medications will help racing achieve the highest level of welfare for the horses and jockeys crucial to our industry. Hagyard Equine Medical Institute understands that any effort that can enhance the safety of horseracing requires the support of the veterinary community. We are encouraged by the spirit of compromise demonstrated and we appreciate the collaborative efforts put forth by multiple industry stakeholders.”
Top Industry Associations
NATIONAL THOROUGHBRED RACING ASSOCIATION: “We thank Senate Majority Leader Mitch McConnell for his willingness and unique ability to bring the industry to the table to craft this comprehensive legislation. We also applaud Congressmen Paul Tonko (D-NY) and Andy Barr (R-KY) and Senator Kirsten Gillibrand (D-NY) for their pioneering efforts in support of federal anti-doping and medication control standards in the form of the Horseracing Integrity Act, which served as the basis for this historic compromise.”
KENTUCKY THOROUGHBRED ASSOCIATION: “The Kentucky Thoroughbred Association endorses the Horseracing Integrity and Safety Act of 2020, to be introduced by Senate Majority Leader Mitch McConnell, adding independence and accountability to the original principles of uniformity in laboratory standards, testing and penalties.”
NEW YORK THOROUGHBRED HORSEMAN’S ASSOCIATION: “Horse Racing is at a crossroads. The 2019 breakdown crisis and this year’s shocking indictments of veterinarians and trainers have exposed the industry’s uneven commitment to both equine safety and competitive integrity. What’s been obvious for years, to owners, trainers, bettors and fans – is that our industry’s institutions need structural change.”
THOROUGHBRED HORSEMEN’S ASSOCIATION: “It has been our widely-expressed view that the original Horseracing Integrity Act, as proposed, should encompass mandatory equine safety and welfare standards for all racetracks and horsemen, and the creation of an investigative and enforcement arm of the industry. We intend to continue to be a constructive participant since the legislation, if enacted, will require substantial industry support and assistance.”
Wednesday, September 23, 2020
Lexington, KY – The Jockey Club today released a response from its general counsel, Marc Summers, to the United States Trotting Association’s (USTA) recent assertion that the Horseracing Integrity and Safety Act (HISA) is unconstitutional.
In a recent press release, the USTA touts a secret “white paper” purportedly concluding that the HISA is “possibly” unconstitutional. Of course, no one else has set eyes on this white paper. But it is hardly surprising that — after months of USTA opposition to any bill like HISA — the USTA’s hired-gun law firm would come up with the USTA’s preordained conclusion.
The USTA’s unwillingness to release its legal analysis is telling: In reality, HISA is carefully crafted and constitutionally sound. The bill has been rigorously vetted. Many attorneys from different sectors (including Supreme Court and constitutional experts from Akin Gump Strauss Hauer and Feld LLP) have thought through the very issues the USTA raises, because we anticipated that those who oppose the bill for other reasons would lob this type of unfounded attack. In the face of decades of precedent supporting the proposed statutory scheme, none of the USTA’s four constitutional arguments withstands scrutiny.
The Horseracing Integrity and Safety Authority (Authority) designated in HISA is subject to the oversight and approval of the Federal Trade Commission (FTC) in at least two critical respects. On the front end, the Authority must file any proposed rules (or rule changes) with the FTC, which must subject the rules to proper notice-and-comment and agency-approval procedures. Without the FTC’s approval, the rules cannot take effect and have no binding legal force. On the back end, all sanctions imposed bythe Authority “shall be subject to review by an administrative law judge” appointed by the FTC, subject to yet further review by the commissioners. Far from the “exalted brooding” the USTA criticizes, these statutorily mandated constraints ensure the FTC’s ultimate responsibility for any meaningful action carried out under the HISA.
This relationship mirrors the enduring and effective model adopted by the Financial Industry Regulatory Authority (FINRA) and the Securities and Exchange Commission (SEC). FINRA is a private, independent, nonprofit, self-regulatory organization that participates in the regulation of the securities brokerage industry, subject to SEC oversight. As with the proposed Authority-FTC scheme, FINRA rules must be approved by the SEC and FINRA’s disciplinary actions are subject to SEC review. Courts considering challenges to FINRA on the non-delegation grounds that the USTA’s press release trumpets consistently have held that the contentions have “no merit.”
Grasping at straws, the USTA warns about (undefined) “law-enforcement powers” that “would be free from FTC oversight.” As an initial matter, the predicate for USTA’s warning is false: Any powers carried out by the Authority, whether analogized to “law-enforcement powers” or not, would be cabined by specific rules the FTC adopts and specific review the FTC conducts over any resulting sanctions. In any event, the Authority’s investigatory powers also parallel those that FINRA routinely carries out with respect to securities brokers and firms. In fact, other statutory schemes — such as Congress’ express grant of broad investigatory authority to the U.S. Anti-Doping Agency (USADA), a private entity recognized as the official anti-doping agency for Olympic sports — impose far fewer constraints on self-regulatory organizations than the FINRA-SEC and Authority-FTC models impose.
2. Hedging its non-delegation challenge, the USTA alleges that the HISA may run afoul of the Appointments Clause and Article II removal restrictions. But the USTA does not acknowledge, let alone resolve, the tension between its two arguments: The non-delegation theory rests on the notion that HISA delegates regulatory authority to a private entity. Meanwhile, the Appointments Clause and removability concerns apply only to federal (i.e., non-private) entities. The fact that the pre-existing Authority designated by HISA is private — as USTA emphasizes to support its non-delegation challenge — dooms any Appointments Clause or removability challenge.
3. USTA’s due process theory fares no better. Ignoring the exceedingly difficult standard for bringing a successful claim under the Due Process Clause, the press release vaguely cautions against “economically self-interested private actors.” But the Authority’s only interest is improving the integrity and safety of horse racing. The “capture” theory that the USTA creates out of whole cloth lacks any basis. As the USTA recognizes, the majority of the Authority’s board members are “independent” (i.e., from outside the equine industry). To be sure, the remaining 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 that minority group of 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). And the committee tasked with nominating eligible candidates for board and standing-committee positions is made up of entirely non-industry members. The HISA further imposes broad conflicts-of-interest requirements to ensure that all board members and independent standing committee members (and their employees and family members) are free of all equine conflicts of interest.
All those safeguards mean the Authority’s board will be even more constrained from self-dealing than the leadership of other self-regulatory organizations, including FINRA. Regardless, established precedent confirms what common sense indicates: Even when a private entity is engaged in the regulatory process, agency authority and surveillance serve as adequate guards against any promotion of self-interest. See, e.g., Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 399 (1940). The FTC’s ability to overrule the Authority’s proposed rules and sanctions ensures that neither the Authority nor the individuals making up its board can “use their position for their own advantage — to the disadvantage of their fellow citizens.” Pittston Co. v. United States, 368 F.3d 385, 398 (4th Cir. 2004).
4. Finally, no part of HISA commands states to do anything to which they don’t freely agree. Instead of requiring the states to undertake any particular duties, the bill presents them with genuine choices: They can work with the Authority to effect the anti-doping program or they can relieve themselves of enforcement activity, with the Authority implementing the horse racing anti-doping and medication control program in the state. Further, the weakness in the USTA’s anti-commandeering argument is laid bare by its reliance on an incorrect quotation from the bill. Rather than providing that “State law enforcement authorities shall cooperate and share information with the Authority,” the bill directs the Authority “to cooperate and share information” with state and federal law enforcement authorities whenever its investigation into violations of the horse racing anti-doping and medication control program uncovers a violation of state or federal law.
For all its grandstanding, the USTA’s bottom line (apparently quoting its attorneys) is underwhelming to say the least: The “enactment would lead to extensive litigation and the possible invalidation of the statute.” Anyone can sue over anything — the mere existence of litigation says nothing about its likelihood of success. These are the facts: The HISA is ground firmly in 70 years of precedent and the Authority-FTC relationship closely parallels the long-running FINRA-SEC model. However, anything is “possible.” It is possible to place a winning trifecta bet six races in a row. But it is not likely. If Congress rejected every bill that could be litigated and “possibly” invalidated, it would never enact a new law.
The HISA is on solid constitutional footing.