Old Friends, the Thoroughbred Retirement Farm in Georgetown, KY, will host an Open House Saturday, Nov. 26 from noon until 2pm for fans to meet new retiree Lava Man (Slew City Slew). The event is free and open to the public. Pizza and lava crunch cakes will be served.
The now 21-year old posted an impressive resume during a racing career that spanned seven years including victories in the GI Pacific Classic, GI Hollywood Gold Cup, and the GII Goodwood H., now called the Awesome Again. Lava Man retired as a 9-year-old with over $5.2 million in earnings.
Upon his retirement from racing, he became a lead pony in Doug O'Neill Stables, a position he held until Nov. 5 when he made his final appearance on the track leading Hot Rod Charlie (Oxbox) to the gate for the GI Longines Breeders' Cup Classic.
On Tuesday, Nov. 8, Lava Man, aka “Coach”, arrived at Old Friends where he will enjoy his well-earned retirement.
The United States Court of Appeals for the Fifth Circuit on Friday ruled that the Horseracing Integrity and Safety Act (HISA) is unconstitutional because it “delegates unsupervised government power to a private entity,” and thus “violates the private non-delegation doctrine.”
The Appeals Court order by a panel of three judges reverses a lower court's decision earlier this year that dismissed a constitutionality lawsuit initiated in 2021 by the National Horsemen's Benevolent and Protective Association (NHBPA).
The Nov. 18 order also remands the case back to U.S. District Court (Northern District of Texas) for “further proceedings consistent with” the Appeals Court's reversal.
The immediate ramifications of how this order will affect the day-to-day operations of HISA and its Authority are still unclear. TDN is in the process of obtaining further comment from stakeholders on both side of the issue, and this story will be updated.
On Mar. 15, 2021, the NHBPA and 12 of its affiliates (later joined by the state of Texas and its racing commission) sued the Federal Trade Commission (FTC), its commissioners, the HISA Authority, and its nominating committee members, bringing claims under the private-nondelegation doctrine, public nondelegation doctrine, Appointments Clause, and the Due Process Clause, seeking to permanently enjoin the defendants from implementing HISA and to enjoin the Nominating Committee members from appointing the Authority's board of directors.
“The plaintiffs argued HISA is facially unconstitutional because it delegates government power to a private entity without sufficient agency supervision,” the Appeals Court order stated. “The district court acknowledged that the plaintiffs' 'concerns are legitimate,' that HISA has 'unique features,' and that its structure 'pushes the boundaries of public-private collaboration. Nonetheless, the court rejected the private non-delegation challenge, concluding HISA stays within current constitutional limitations as defined by the Supreme Court and the Fifth Circuit.'
“We cannot agree,” the Appeals Court order stated. “While we admire the district court's meticulous opinion, we conclude that HISA is facially unconstitutional. A cardinal constitutional principle is that federal power can be wielded only by the federal government. Private entities may do so only if they are subordinate to an agency. But the Authority is not subordinate to the FTC. The reverse is true. The Authority, rather than the FTC, has been given final say over HISA's programs.”
The order continued: “While acknowledging the Authority's 'sweeping' power, the district court thought it was balanced by the FTC's 'equally' sweeping oversight. Not so. HISA restricts FTC review of the Authority's proposed rules. If those rules are 'consistent' with HISA's broad principles, the FTC must approve them. And even if it finds inconsistency, the FTC can only suggest changes.
“What's more, the FTC concedes it cannot review the Authority's policy choices. When the public has disagreed with those policies, the FTC has disclaimed any review and instead told the public to 'engag[e] with the Authority.' An agency does not have meaningful oversight if it does not write the rules, cannot change them, and cannot second-guess their substance. As the district court correctly put it: 'Only an Act of Congress could permanently amend any Authority rule or divest it of its powers. The FTC may never command the Authority to change its rules or divest it of its powers.'”
“The end result is that Congress has given a private entity the last word over what rules govern our nation's thoroughbred horseracing industry. The Constitution forbids that. For good reason, the Constitution vests federal power only in the three branches of the federal government. Congress defies this basic safeguard by vesting government power in a private entity not accountable to the people. That is what it has done in HISA,” the order stated.
“It is the duty of the National Horsemen's Benevolent and Protective Association to protect horsemen across the country and that is not a responsibility I take lightly,” said Eric Hamelback, CEO of the NHBPA. “From HISA's onset, we have thoroughly and fairly examined the HISA corporation's impact on our industry and its constitutionality. We operated in good faith and did our due diligence to appropriately weigh the pros and cons. We have been saying for years this law and the defined Authority itself are unconstitutional and we are pleased the court has unanimously sided with our position, an outcome many in our industry thought was impossible. Today's unanimous ruling clearly states the entity constructed under HISA is an unconstitutional body and should not hold governing power over our industry, a position we have long supported. On behalf of the NHBPA, I can assure you that we will be following this development closely and support the power reverting back into the hands of the State Racing Commissions. I will keep our members updated as more details come to the surface. We are very appreciative of the 5th Circuit Court of Appeals for the thorough analysis and opinion. We also thank the many industry stakeholders who supported us in our effort to ensure that horsemen are not subject to an unconstitutional law.”
“While HISA is disappointed by the Fifth Circuit's decision, we remain confident in HISA's constitutionality and will be seeking further review of this case,” said Charles Scheeler, Chair HISA Board of Director. “If today's ruling were to stand, it would not go into effect until January 10, 2023 at the earliest. We are focused on continuing our critical work to protect the safety and integrity of Thoroughbred racing, including the launch of HISA's Anti-Doping and Medication Control Program on January 1, 2023.”
At a different point in the order, the Appeals Court delved deeper into the issue of rulemaking.
“For instance, HISA broadly instructs the Authority to create a program that includes '[a] uniform set of training and safety standards and protocols consistent with the humane treatment of covered horses,' while leaving the policy details up to the Authority…. Keep in mind, moreover, that we are not considering here whether the 'considerations' provide a sufficiently intelligible principle to satisfy the public non-delegation doctrine. Instead, we are deciding whether the Authority is subordinate to the agency. And, on its face, HISA's generous grant of authority to the Authority to craft entire industry 'programs' strongly suggests it is the Authority, not the FTC, that is in the saddle…”
The order continued: “If the FTC cannot review the policy choices behind the rules, then logically the FTC cannot make the Authority modify those policies. That is again confirmed by HISA's plain terms. The modification power the Act gives the FTC is limited in two ways. It pertains only to whether a rule is 'consistent' with the Act and does not include review of the policies informing the rule…”
“The Authority's power outstrips any private delegation the Supreme Court or our court has allowed. We must therefore declare HISA facially unconstitutional. In doing so, we do not question Congress's judgment about problems in the horseracing industry. That political call falls outside our lane. Nor do we forget that '[t]he judicial power to declare a law unconstitutional should never be lightly invoked.' We only apply, as our duty demands, the settled constitutional principle that forbids private entities from exercising unchecked government power.”
The NHBPA lawsuit is separate from a similar HISA complaint over alleged constitutional issues brought by racing commissions and attorneys general in a number of opposing states. That case, too, was dismissed earlier this year but has a motion to dismiss pending.
The Thoroughbred Education and Research Foundation (TERF) will award the Belmont Child Care Association, Inc. (BCCA) $10,000 to be used for educational purposes in 2023. The mission of the BCCA is to provide a safe, supportive, and academically inspiring environment for children of parents working in the Thoroughbred racing backstretch area located at New York's historic Belmont Park, Aqueduct Racetrack, and Saratoga Race Course.
“What makes BCCA so unique is that we are changing lives at the racetrack every day,” said Executive Director Joanne K. Adams. “For the past 20 years, we've provided a state-of-the-art child care center, Anna House, at Belmont Park which is open 365 days a year and offers a STEAM-based curriculum for children ages 6 weeks to 5 years old. Last year, we opened Faith's House at Saratoga Race Course which fulfilled our dream of providing a year-round program at Belmont Park and a summer program at Saratoga.”
What do these stallions have in common: Competitive Edge, First Samurai, Include, First Dude, Majesticperfection, Midnight Lute and Noble Mission (GB)? Okay, so you could also add A.P. Indy, Into Mischief, Lope de Vega (Ire), Medaglia d'Oro and Quality Road to the mix. But you would hope so, too, if you happen to be one of those highly paid advisors who tell their patrons that the only way to start a breeding program is with most expensive covers around.
Because these are the dozen sires responsible for mares that made seven figures at the Keeneland November Sale. And their overall complexion suggests a curious disconnect between this auction, and the one staged in the same ring back in September.
You can judge as much from a couple who have been through both sales. Proud Emma (Include) made $9,000 as a yearling, while sale-topper Midnight Bisou (Midnight Lute) notoriously failed to reach her reserve at $19,000. That's hardly typical, obviously, in that most of the yearlings trading for that kind of money struggle to pay their way; but we all know how few of the most expensive ones fare any better.
Admittedly we have just seen Flightline (Tapit) and Malathaat (Curlin) standing up for the seven-figure yearling. And the whole viability of our business hinges on enough of those investments working out, to keep the rich guy in the game, in equilibrium with enough stories like Rich Strike (Keen Ice) to give everyone else a chance.
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In the case of these valuable broodmare prospects, they have generally disclosed something–not blatant in their pedigree and conformation as adolescents–to secure elite caliber as runners. But while performance is demonstrably a critical indicator for their recruitment, their purchasers will often have contrived some retrospective discovery of genetic depth.
To be fair, we're all guilty of that. Once a horse demands attention on the racetrack, we will generally turn up some satisfactory, latent distinction in its family tree, especially one that flatters our prejudices. Rich Strike is a good example. His dam had been discarded for $1,700, and his half-sister was claimed for $5,000 the month before he won the Derby. Yet he turned out to have such an interesting background–by a grandson of Smart Strike out of a Smart Strike mare, for instance, and a third dam by a forgotten full-brother to Smart Strike's sire–that people like me could rationalize his emergence as a wholesome rebuke to the flimsiness of many commercial pedigrees.
We could hail his sire, similarly, as just the type that “should” be siring Derby winners–even if his only other stakes winner, at that stage, had come in Puerto Rico. Keen Ice's pedigree is saturated by old-fashioned influences, which sustained him to be better than ever in his fourth campaign. He soaked up nine races as a sophomore, rounding off with a strong-finishing fourth in the GI Clark H., and I'm duly delighted to see that Rich Strike is himself likely to make his own ninth appearance of the year in the same race. And don't forget that his campaign really began in the Gun Runner S., in the last week of 2021.
That race was won by Epicenter (Not This Time), who remained at Fair Grounds for all three of the local Derby rehearsals. In the process he emulated Mandaloun (Into Mischief) the previous year, when other local protagonists included Hot Rod Charlie (Oxbow) and the lamented Midnight Bourbon (Tiznow).
New Orleans appears to be an increasingly important staging post on the Triple Crown trail since its trials were extended. I suspect that's because the extra distance redresses a loss of conditioning opportunity in the lighter schedule nowadays favored by so many trainers. As a result, the opening of the meet this weekend feels very much like the start of the next cycle in our community narrative. It will be interesting to see whether the traditional winter haven of Florida can respond to this squeeze.
Be all that as it may, producing a Kentucky Derby winner at the first attempt did not rescue Keen Ice's latest yearlings from neglect at the sales. But while he plainly owes fourth position in the second-crop table to a single earner, the fact remains that his maturing stock has included 70 other winners, equating to 58% of starters. That handsomely outranks all relevant competition, including the three feted names above him: Gun Runner (40%), Arrogate (46%) and Practical Joke (50%).
Keen Ice | Sarah Andrew
So while some of his farm's strategies are hardly aligned with commercial convention, I certainly wouldn't mind a daughter of a stallion who carries Deputy Minister 3×3 and Chic Shirine (Mr. Prospector) as fourth dam. That's because I believe that all matings should aim at a saturation of genetic quality, three or four generations back, as the best insurance against the unpredictability of inheritance. If you can't even be certain what color your foal's coat will be, then you must surely strive to make it a matter of indifference which strand comes through, in terms of ability, simply because it's all good stuff.
Yet the yearling market seems to be massively predicated on sire power. This, to a degree, is self-fulfilling: in order to warrant an expensive cover, a mare needs to bring commensurate performance or pedigree into the equation. Naturally there are stallions that have had to earn their stripes, and come up the hard way. Yet even Into Mischief reiterates the folly of disregarding 50% of a horse's genetic contribution, his dam Leslie's Lady famously having then come up with Beholder (Henny Hughes) and Mendelssohn (Scat Daddy).
Leslie's Lady had been an $8,000 short yearling by Tricky Creek out of a Stop the Music mare. Interestingly, though he ended up standing in New Mexico for $2,500, Tricky Creek was a source of exactly the kind of soundness breeders can expect from Keen Ice (and Rich Strike, when his time comes). Late in his stud career, a survey ranked Tricky Creek fifth among active sires by percentage of starters-to-foals; and seventh, by starts-per-starter. (You really shouldn't overlook this, when reflecting on the way his daughter produced Beholder to win Grade I races every year from two through six.)
Moreover Tricky Creek's dam was a half-sister to the dam of Soaring Softly (Kris S.) and in all produced 15 winners, six at stakes level. At one stage, Sheikh Mohammed gave $5.3 million for a Kingmambo half-brother to Tricky Creek at the yearling sales. So while Tricky Creek himself couldn't even muster 20 stakes winners, there was ample quality percolating that might be stoked back to life by the right alchemy.
Into Mischief | Sarah Andrew
Without getting too bogged down, the mother of Leslie's Lady was out of a half-sister to a Grade I winner, and the next dam won races like the Alcibiades S. and Schuylerville S. The point is that Leslie's Lady had nearly seamless quality from top to bottom in her fourth generation. Yet that stuff, for your average yearling speculator, is quite literally off the page.
The best breeders, however, know that it's a long and winding road to the summit. That's why the market for broodmares is far less beholden to nervous fads than the one for their offspring.
So I want to finish off with a tribute to two horses who attest to the merit of the long game. One is Tempesti (Ity) (Albert Dock {Jpn}), co-owned by the Razza Dormello Olgiata synonymous with the breed-transforming partnership of Federico Tesio and Mario Incisa della Rocchetta. In Milan last Sunday he became the first horse carrying the iconic red crossbelts to win the Group 2 prize that honors Tesio's memory.
As a coincidental snapshot of an immeasurable legacy, Tricky Creek represented just one of countless sire lines tracing to Nearco (Ity); while his damsire His Majesty, whose legacy as a broodmare sire also includes Danehill, was by another Dormello graduate in Ribot (GB). But you can equally find those names on either side of the pedigrees of, say, Frankel (GB) or Flightline.
Less cheerfully, this week marked the end of the road for Cambiocorsa (Avenue of Flags), once feted as “queen of the hill” at Santa Anita; and subsequently dam of five stakes winners, and second dam of European champion Roaring Lion (Kitten's Joy). Tragically, she had outlived both her celebrated grandson, when barely embarked on a stud career, and his dam Vionnet (Street Sense), who was also prematurely cut down.
Jan Vandebos with Cambiocorsa and Vionnet | Courtesy Jan Vandebos
Nobody cares for her horses more lavishly than Jan Vandebos, and this loss will doubtless poignantly renew the memory of others. But she should be proud of Cambiocorsa's contribution to the remarkable legacy of her dam Ultrafleet (Alfeet)–who also produced millionaire sprinter California Flag (Avenue of Flags) and the dam of GI Preakness winner Rombauer (Twirling Candy).
Ultrafleet was a $10,500 yearling at the September Sale, and made that look expensive on the racetrack. But she then founded a dynasty so regal that even her unraced daughter by Cowboy Cal could produce a Classic winner.
That won't surprise those who have been scouting the breeding stock sales not just for the past couple of weeks, but for many decades. It had been a similar story to Keeneland at Fasig-Tipton, after all: sires with seven-figure mares there included Awesome Patriot, Brody's Cause, Daredevil, Flower Alley, Karakontie (Jpn), Mucho Macho Man, Street Boss, Tale of the Cat (twice) and Wilko.
In the end, I think the obsession with sire power is often little more than a gesture–whether a practical gesture, or a merely irritated one–against the overwhelming complexity of this game. With their huge modern books, sires invite the illusion that you can get all the answers by having a more sophisticated software program than the next guy. That's always going to appeal to investors who come into this business expecting it to behave as coherently as those in which they made their money. A mare, with one foal a year at most, is little or no help to that way of thinking. But good luck to you, if you only bother seriously with one face of the coin–and need it to land that side up, every single time.
