The Federal Trade Commission notified the Fifth Circuit Court of Appeals in New Orleans by a Sept. 2 letter that the Horseracing Integrity and Safety Authority has proposed two rule changes to meet objections raised by two states and others in a federal lawsuit.
The suit originated in U.S. District Court for the Western District of Louisiana, which on July 26 issued a preliminary injunction curbing HISA’s power to enforce FTC safety rules in Louisiana and West Virginia and to all plaintiffs in the case. The ruling was not based on constitutional grounds.
The Fifth Circuit Court of Appeals Aug. 8 ordered that the district court injunction be stayed except for its application to three regulations while it considers an appeal of the injunction. Oral arguments on the merits of the case followed Aug. 30.
Hearings regarding HISA are scheduled for Tuesday, August 30, 2022, for approximately 10:30 a.m. at the US Fifth Circuit Court (600 Camp Street, New Orleans, LA 70130)
The Louisiana Thoroughbred Breeders Association encourages all Horsemen to attend and support Louisiana Attorney General Jeff Landry at his press conference scheduled for 9:30 a.m. outside the courthouse.
August 18, 2022 (Lexington, Ky) – The Horseracing Integrity and Safety Authority’s (HISA) Board of Directors yesterday submitted its proposed rules for HISA’s Anti-Doping and Medication Control (ADMC) Program to the Federal Trade Commission (FTC) for final approval ahead of the program’s January 1, 2023 implementation date. These rules were developed by the Horseracing Integrity and Welfare Unit (HIWU) in consultation with the HISA ADMC Standing Committee before being presented to the HISA Board for approval. This comes after a public comment period and numerous open discussions and meetings with industry organizations and individuals, as well as the careful consideration of more than 200 comments submitted by racing participants and the general public.
“The comprehensive and uniform rules and regulations outlined in HISA’s ADMC Program will truly level the playing field for racing participants and fans across the country,” said HISA CEO Lisa Lazarus. “The ADMC Program’s standardized implementation of the rules and the consistent enforcement and efficient resolution of rule violations by HIWU will make for a fairer, more transparent sport, and horses will be safer as a result.”
The rules submitted to the FTC include the Equine Anti-Doping and Controlled Medication Protocol, the Prohibited List, Definitions, Arbitration Procedures, Equine Testing and Investigation Standards, and Equine Standards for Laboratories and Accreditation. Additionally, HISA recently made a draft Prohibited Substances List (Technical Document) available for public comment and will continue to solicit stakeholder input before submitting that document to the FTC at a later date.
“These rules and enforcement processes are informed by subject matter experts who understand anti-doping and therapeutic medication control, have been involved in creating and managing equine anti-doping and welfare programs, and have unparalleled experience in testing science and research,” ADMC Committee Chair Adolpho Birch said. “Out-of- competition testing, uniform lab accreditation and results management processes, a robust intelligence and investigations arm, and consistent penalties that are commensurate to potential rule violations are just a few of the components of HISA’s ADMC Program that will change thoroughbred horseracing for the better. Importantly, the rules and processes include and build upon successful state programs, such as the Multiple Medications Violations Schedule.”
The FTC’s approval process includes another public comment period during which industry representatives, horsemen, state regulators and the general public can once again weigh in on the proposed rules and regulations. HIWU will immediately begin working with state racing commissions and others across the industry to undertake a thorough stakeholder education process to ensure a smooth transition to implementation of HISA’s ADMC Program and HIWU’s ensuing enforcement. In the future, HISA and HIWU will also work with the industry to evolve the rules based on their feedback and as new data, science and experience on the ground dictates.
Jonathan Taylor, chair of HIWU’s Advisory Council, said: “These new ADMC regulations, incorporating best practice from current equine anti-doping programs and from the World Anti-Doping Code, and reflecting the extensive and helpful feedback received from stakeholders, promise a new beginning for U.S. Thoroughbred racing. The Advisory Council looks forward to overseeing and supporting HIWU’s efforts to implement and enforce these new regulations robustly, consistently, and fairly across the whole of the sport.”
The United States Court of Appeals for the Fifth Circuit will now hear oral arguments Aug. 30–slightly earlier than expected–in the injunction appeal brought by the Horseracing Integrity and Safety Act Authority (HISA) and the Federal Trade Commission (FTC).
Both entities are defendants in an underlying lawsuit that alleges unconstitutionality and federal rulemaking procedure violations regarding HISA’s initial framework of regulations that went into effect July 1.
The Appeals Court docket previously indicated a September oral argument date was being planned.
An alliance of 14 affiliates of the Horsemen’s Benevolent and Protective Association and four racetracks are seeking protection from the alleged harms of the Horseracing Integrity and Safety Act Authority (HISA). They are asking a federal judge to allow them to participate in an existing lawsuit that claims HISA and the Federal Trade Commission (FTC) violated the Fourth and Seventh Amendments to the U.S. Constitution as well as the process by which federal agencies develop and issue regulations, T. D. Thornton of Thoroughbred Daily News reports.
The HBPA affiliates and the tracks on Friday filed a “motion to intervene” in United States District Court (Western District of Louisiana). If accepted by the judge, it would grant the petitioners status in the case alongside the lead plaintiffs from the states of Louisiana and West Virginia.
The HBPA affiliates seeking to join the lawsuit are Arizona, Arkansas, Illinois, Iowa, Indiana, Kentucky, Minnesota, Nebraska, Ohio, Oklahoma, Pennsylvania, Washington, Charles Town, and Tampa Bay Downs. The Colorado Horse Racing Association, the state’s statutorily recognized horsemen’s group, also wants to be an intervenor.
The United States Court of Appeals has issued a temporary stay nullifying a July 26 injunction preventing the Horseracing Integrity and Safety Authority from enforcing its racetrack safety regulations in the states of Louisiana and West Virginia.
For now at least, the stay also makes moot the question of whether the injunction is limited to Louisiana and West Virginia or also applies to Jockeys’ Guild members riding Thoroughbred races in other states. The July 26 order by Terry Doughty, U.S. District Court Judge for the Western District of Louisiana, Lafayette Division, stated that the “geographic scope of the injunction shall be limited to the states of Louisiana and West Virginia,” but also included the phrase “and as to all plaintiffs in this proceeding.”
The Jockeys’ Guild has delivered on its promise to take “immediate action” against the Horseracing Integrity and Safety Authority if the newly created national regulatory agency continued to enforce riding crop rules following a federal judge’s order for an injunction blocking HISA from operating in Louisiana and West Virginia.
The injunction, ordered July 26 by U.S. District Court Judge Terry A. Doughty in the Western District of Louisiana, Lafayette Division, limited the HISA ban to the states of Louisiana and West Virginia, but added the phrase “and as to all plaintiffs in this proceeding.”
Jockeys’ Guild, Inc., interpreted Doughty’s ruling to mean that all members of the Jockeys’ Guild are exempt wherever they are riding. HISA interpreted the language as applying only to the organization as a plaintiff and not its individual members. One Guild member, Gerard Melancon, was listed as a plaintiff.
A lawsuit filed on July 29 in U.S. District Court for the Northern District of Texas challenges the authority of the Horseracing Integrity & Safety Authority.
The suit was brought by Lone Star Park owner Global Gaming, the owner of a Texas greyhound track seeking approvals to run horse races, and two entities trying to develop racetracks for horses in Texas. The suit and a motion for preliminary injunction motion argue that members of the HISA board of directors should have been appointed by the President on the advice and consent of the Senate, and that the Authority is unconstitutionally structured because the President cannot superintend the authority’s execution of laws.
The Horseracing Integrity and Safety Authority and the Federal Trade Commission have each filed emergency motions seeking stays of a federal judge’s injunction effectively blocking the Authority from enforcing its regulations in the states of Louisiana and West Virginia.
The motions were filed in the U.S. Court of Appeals for the Fifth Circuit in New Orleans.
The injunction, ordered July 26 by Judge Terry A. Doughty in U.S. District Court for the Western District of Louisiana, Lafayette Division, was in conjunction with a lawsuit filed against the FTC, HISA and its board members and CEO by the states of Louisiana and West Virginia, their respective racing commissions, Jockeys’ Guild, Inc., Louisiana Horsemen’s Benevolent and Protective Association, Louisiana Thoroughbred Breeders Association and five individuals.
By Thomas J. Rooney, President & CEO of the National Thoroughbred Racing Association
Change is never easy, especially change being brought about by the federal government imposing national uniform reforms in an industry long regulated at the state level. I served in the House of Representatives for 10 years, representing 750,000 people from South Florida. I heard day in and day out from my constituents on how we in the government could do things better. This feedback drove the work I did in Congress. Since I started at NTRA, I’ve been meeting with my new thoroughbred racing constituency to hear about the major issues they face and how the NTRA can help. One of the most common concerns revolves around a bipartisan bill signed into law by President Trump in 2020 known as the Horseracing Integrity and Safety Act (HISA).
The fact of the matter is, Thoroughbred racing has needed change for quite some time. We all know that. The path we were going down was not sustainable, and after some challenging years we could not as an industry keep doing business as usual. Accordingly, since the passage and implementation of HISA, I’m optimistic that together we can work to preserve horse racing so that future generations can also enjoy it. The best way to do that is by creating fairness and safety across the nation for the people and horses that make up this sport we love.
HISA officials are doing all they can to educate and communicate with industry stakeholders covered by the law. I think it’s important to separate facts from myths, so misinformation doesn’t get in the way of the Authority’s work. So let me try to set the record straight.
Myth: HISA has very broad powers of search and seizure under the law, which violates the Fourth Amendment.
Fact: HISA regulations are very similar to those long used by state horse racing authorities and courts usually affirm those powers.
State horse racing authorities have long exercised investigatory and enforcement powers over licensed entities that are similar to those provided in HISA. More broadly, courts have dismissed search-and-seizure objections critics have raised because participants in closely regulated industries have diminished expectations of privacy. While individuals have a Constitutional right to privacy, there is no Constitutional right to own, race, and train horses. Licensed individuals are only able to participate under the terms of their license and if rules are violated, that license can be revoked. However, HISA has made it clear their regulatory authority extends only to matters relating to racing. So any argument claiming HISA extends beyond matters relating to racing is wrong.
Myth: Many states don’t currently have a voided claim rule, and now HISA is regulating all claims to the detriment of owners and trainers.
Fact: HISA provides a long needed, nationwide voided claim rule which will standardize the process for all claims, eliminate confusion and protect owners and trainers.
For years, voided claim programs have been confusing and challenging, even for regulators. In many states, voided claim rules don’t exist at all. HISA aims to standardize this process. It will require a claim be voided in five specific circumstances (death, euthanasia, bleeding, being vanned off the track or testing positive for prohibited substances) making the rules clearer and leveling the playing field. Primarily this rule is intended to protect the welfare and safety of horses. Additionally, this rule is intended to protect people who sell horses through the claiming business but also ensure those purchasing horses are getting a fair purchase.
Myth: HISA’s Committees are not representative of the Industry.
Fact: The Advisory Committees are made up of veterinarians, chemists, a jockey, former track owners and operators, breeders, former heads of equine sales companies, and a wide array of highly regarded independent directors with expertise both within and outside of horse racing.
HISA has worked with stakeholders from every facet of the industry to make the Advisory Committees as representative and inclusive as possible. HISA has also sought and received public comment on every proposed rule and regulation, so that any parties not directly represented on the Committee could share their input. While it is impossible for everyone to have a seat at the table, the Authority has made every effort to have representation and input be as wide-ranging as possible.
Myth: HISA is going to cost too much and small tracks and small owners will no longer be able to participate in the industry.
Fact: While not all state racetracks and regulators have finalized funding mechanisms for HISA fees, the best way to drive down the cost per covered individual is by every segment of the industry participating.
The concern over cost is a very valid one that I don’t want to minimize. The cost assessment model is based on 50% starts and 50% purses, which is intended to help the smaller tracks. HISA will also be looking for supplemental funding models as they move forward. The best way to drive down cost is for all industry participants to pay their share, which will bring down the cost for each covered individual. In the end, if it leads to a safer sport with a higher degree of transparency and integrity, then it will be money well spent. That, after all, is what we all want and what people expect.
When I first took this job, I met with a well-known trainer and asked him what he wants for racing. He said one word: fairness. With minimum standards of fairness across the country, Thoroughbred racing and betting will be more competitive and more fun. We must continue to work together as an industry to improve our sport, so the dream of future generations enjoying horse racing can become a reality.