At this point, the feasibility of the July 2022 deadline for implementation of the Horseracing Integrity and Safety Act is a matter of conjecture. According to panelists and audience members at the Racing and Gaming Conference at Saratoga Aug. 16, there's a wide range of opinions on whether the legislation (which was signed into law at the end of 2020) is a good idea, where its greatest legal and logistical challenges may lie, and whether it will make its deadline.
First, it's helpful to understand the basic definitions in the law, according to Pat Cummings, executive director of the Thoroughbred Idea Foundation. The law will apply to “covered horses,” “covered races,” and “covered persons.” Covered horses are any Thoroughbred from the time they post their first timed workout until the authority receives official notice of their retirement from racing. Covered races are those with parimutuel wagering, which means fair circuit races and steeplechase races are not automatically included. Covered persons, Cummings pointed out, includes the usual positions already licensed by state racing commissions like trainers, owners, jockeys, etc., but also includes breeders.
Cummings pointed out that currently, breeders are not licensed by state racing commissions, though in some states they may face action from their state breed organizations if they violate certain rules as members. This creates some confusion, since the federal law also places restrictions on use of bisphosphonates, which many in the industry say have been used on sales yearlings in an attempt to improve the appearance of pre-sale radiographs.
“Some of us argue that you're still leaving breeders out by conferring jurisdiction when a horse has its first workout, which means you're leaving a gap from the time the horse is born,” said panelist Alan Foreman, chairman and CEO of the Thoroughbred Horsemen's Association. “The response is that there's language about unfair and deceptive trade practices [which would apply].”
How widely that language or what may constitute “unfair and deceptive trade practices” could be applied is anyone's guess at this stage.
One of the biggest concerns shared by many industry onlookers is what the new organization will cost, and who will pay for it. Cummings said horseplayers largely assume the bill will fall to them.
“I think the bettors would suggest they are already paying for it, based on takeout,” Cummings said. “There is a fear amongst bettors that increasing takeout will come as a means to pay for these programs.”
Racing commissions don't know what they would be charged to outsource pre- and post-race drug testing to a new authority, and some in states with smaller racing industries have expressed concerns that an increase in testing costs would bankrupt them. Ed Martin, president and CEO of the Association of Racing Commissioners International, was in the audience and noted that most state racing commissions he has spoken with are looking forward to the change and believe it will make regulation more cost-efficient for them, with a few exceptions.
Attorney Pete Sacopulos also wonders whether legal costs for smaller training operations will rise. Sacopulos laid out his interpretation of the way drug positive cases could be adjudicated under HISA. The current process (which varies somewhat by state) sees the stewards issue a ruling when they determine there has been a violation of racing rules. If the licensee appeals that decision, the case may go to an administrative law judge and/or the racing commission, on to the state judicial review process, on up to the U.S. Supreme Court.
Sacopulos' understanding of the federal law however, results in fewer choices for a trainer looking to appeal a finding. He believes HISA would hear a case, though it's unclear whether this would be done by a subcommittee or the overall board. This could be appealed, but it would be appealed most likely to office of administrative law judge housed under the Federal Trade Commission banner, since HISA falls under the FTC's purview. This would limit the pool of judges available to hear the case and therefore, restrict a defendant's choice if they wanted to request a different judge than the one assigned. Sacopulos also believes the administrative law judge would hold another hearing, including witnesses and a review of evidence, rather than reading through existing transcripts and motions from the original hearing the way state courts do now. He also said HISA doesn't seem to allow for mediation in such a case, which state and federal courts do.
If a trainer wants to continue appealing, Sacopulos said they would be requesting the FTC hear the case, which the organization could decline.
“You're not guaranteed a hearing from the FTC, let's be clear about that,” said Sacopulos, who said if the FTC chose not to hear a case, it would go straight to the U.S. Court of Appeals at the cost of $30,000 to $50,000 to the defendant. “How does a person with a minor overage operate in this system?
“They don't.”
Foreman said he didn't agree with Sacopulos' interpretation of the process, but said both of them were speculating at this stage. He also pointed out that the vast majority of minor overages are for therapeutic substances and aren't appealed under the current system. Under USADA's regulation of human sport, Foreman also said “only a very small number of violations” are ever appealed past the USADA level, so it's not likely these limitations would meaningfully impact defendants, even if Sacopulos' interpretation is correct.
It all may be moot anyway, according to attorney Chris Kannady, state representative in Oklahoma. Oklahoma's racing commission is one of several bringing suit against the new authority, questioning whether it's legal to designate regulatory power to a private entity in the way HISA does.
Prominent attorney Bennett Liebman, government lawyer in residence at the Albany Law School, agreed that the U.S. Supreme Court has not made a ruling about this kind of delegation since 1936 and would likely be eager to review it, should that case come before them.
“It is probably unlikely that this will go into fruition in July 2022 as predicted,” said Kannady. “I just don't believe, given the circumstances legally and politically, that it will.”
Kannady predicted that state legislators in conservative states would likely not agree to delegate authority to any kind of federal authority. In Oklahoma, Kannady believes the bill would need support from at least 76 out of 101 state representatives. Eighty-two of the state representatives in the legislature are Republican, and Kannady doubts the increased costs that will come with HISA will be looked upon kindly by them.
Whatever problems there may be with the new law, some panelists expressed hope that the new authority could bring the sport back from what many see as the brink of disaster.
“We have not moved as society has moved in many respects,” said Foreman. “The public simply doesn't accept the way we do business … we have not been the same since 30 horses died on the racetrack at Santa Anita, because we couldn't explain it.
“This is a perfect storm. That's why this is happening.”
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