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Judge Halts Anti-HISA Suit in Louisiana Pending Outcome of HBPA Case in U.S. Appeals Court

A federal judge has stayed a 14-month-old lawsuit initiated by the states of Louisiana and West Virginia that is trying to wipe out the Horseracing Integrity and Safety Act (HISA) via alleged constitutional violations, ordering the case to be “administratively terminated” until the United States Fifth Circuit Court of Appeals makes a ruling in a separate suit in which the Horsemen's Benevolent and Protective Association (HBPA) is also alleging HISA is unconstitutional.

However, U.S. District Court (Western District of Louisiana) Chief Judge Terry Doughty wrote in his Sept. 14 ruling that, “This Order shall not be considered a dismissal or disposition of this matter,” and that he was halting the case while the Fifth Circuit decision played out “without prejudice to the right of the parties to reopen the proceedings.”

This means the plaintiffs (the two states are joined by the Louisiana racing commission, the Louisiana HBPA, the Louisiana Thoroughbred Breeders Association, West Virginia's racing commission, and five individuals regulated as “covered persons” under HISA) and the defendants (the HISA Authority, the Federal Trade Commission [FTC], plus overseers of both entities) must now await the decision–likely to be issued months from now–that will result from the Fifth Circuit oral arguments scheduled Oct. 4.

In 2 1/2 weeks, the National HBPA and 12 of its affiliates will be trying to prove claims that the 2022 rewrite of the HISA law remains “patently unconstitutional,” and that the Authority overseeing the sport “is basically a private police department” whose sweeping powers equate to “oligarchic tyranny.”

The HISA Authority and the FTC will go into those same arguments backed by a lower court's opinion issued in May that ruled HISA is indeed constitutional, because “Congress cured the unconstitutional aspects of HISA's original approach.”

It's also on the judicial record that the U.S. Court of Appeals for the Sixth Circuit upheld the constitutionality of HISA back in March.

One day prior to Judge Doughty's ruling, Magistrate Judge David Ayo wrote in a report that recommended staying the Louisiana case that the multiple, overlapping anti-HISA lawsuits currently swirling in the court system are clogging federal dockets.

“After an exhaustive review of the landscape of suits challenging the Act, this Court concludes that [an amended complaint the plaintiffs had filed] is the result of deliberate strategy” that equated to “an abuse of procedure and an impermissible use of judicial resources,” Judge Ayo wrote in his Sept. 13 report.

The original lawsuit in this case was filed June 29, 2022, alleging that HISA violates the Fourth, Seventh and Tenth Amendments to the U.S. Constitution, plus the Administrative Procedure Act, which governs the process by which federal agencies develop and issue regulations.

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What’s in a Name? Capulet, Vaux Le Vicomte

The name of brilliant 2yo Dundalk winner (and later G2-second) Capulet (Justify) gets one thinking, with the obvious connection to the famous tale of Romeo and Juliet. It also makes perfect sense that the dam is called Wedding Vow (Ire) (Galileo {Ire}): Shakespeare's play is very much about the tragic conflict between two different matrimonial projects–the arranged marriage of Juliet with older man Count Paris versus the young girl's unlikely and passionate love for her “only hate” Romeo Montague. The play could very well be re-titled “Two Weddings and Five Funerals” (Mercutio, Tybalt and Paris also die). Now Juliet was a Capulet, and this equine Capulet is a colt, which may seem a bit counterintuitive, but “Capulet” is the exact character's name for Juliet's father in Shakespeare's text. In any case, this column has a soft spot for the time-defying story of the two “star-crossed lovers” of Verona, owing its very title “What's In A Name” to it. We will always cheer for this “big, beautiful horse with a good temperament”, so described by rider Seamus Hefferman.

4th-Dundalk, €15,000, Mdn, 8-15, 2yo, 8fT, 1:41.46, st.
CAPULET (c, 2, Justify–Wedding Vow {Ire} {GSW-Ire & G1SP-Eng, $316,572}, by Galileo {Ire}). O-Mrs John Magnier, Michael Tabor & Derrick Smith; B-Orpendale, Wynatt & Chelston (KY); T-Aidan O'Brien.

There are fascinating stories of grand palaces and chateaux hidden in the name of multiple-winning filly Vaux Le Vicomte (GB) (Lightning Spear {GB}). The Clairefontaine winner is out of Tuileries (GB) (Cape Cross {Ire}), namesake in real life to what is now known mostly as a wonderful public garden in the center of Paris, but that once was a royal palace with more historical memorable moments than any architectural wonder of the world –destroyed during the Paris Commune revolt of 1871. Vaux-Le-Vicomte, southeast of Paris, on the other hand, is still standing, but only just. This property was the manor marvel that provoked the jealousy of the Sun King Louis XIV towards the owner (and his Minister of Finances) Marquis Nicolas Fouquet (1615-1680), with the building of the magnificent Palace of Versailles being the ultimate consequence of it–according to legend and Alexandre Dumas, who placed the masterful climax of his Man In The Iron Mask narrative in the middle of a grand fete at the castle on 17 August 1661 in the novel “The Vicomte De Bragelonne” (1850) (a worthy sequel to “the Three Musketeers”, with aging D'Artagnan at his very best). Quite a lot to live up to for this brave young filly.

3rd-Clairefontaine, €28,000, Cond, 8-14, 3yo, 8fT, 1:37.70, g/s.
VAUX LE VICOMTE (GB) (f, 3, Lightning Spear {GB}–Tuileries {GB}, by Cape Cross {Ire}). O-Rangio Farm SRL; B-Grundy Bloodstock Ltd (GB); T-Maurizio Guarnieri.

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Campos Fractures Ribs, Vertebrae In Woodbine Paddock Mishap

Jockey Jose L. Campos is in a Toronto-area hospital with rib and back injuries following an incident at Woodbine racetrack prior to Thursday's first race.

Campos, 32, was aboard Spanish Beauty as the field of seven older fillies and mares was leaving the walking ring en route to the racetrack. According to Gerry Olguin, retired jockey and agent for Campos, the horse flipped over, causing the rider to strike the metal railing, and then had Spanish Beauty fall on top of him.

Woodbine's press office reported that Spanish Beauty was not injured.

Campos broke multiple ribs and sustained a fractured vertebrae, Olguin said. adding the rider was moving all of his extremities and was in “good spirits.” Campos will be hospitalized for at least a couple of days for observation and further diagnosis, Olguin said. At this time, no surgery is scheduled.

Campos, a leading rider in his native Mexico, was competing in his first full season at Woodbine after arriving toward the latter part of the 2022 meet. He is currently seventh in the jockey standings, with 29 wins from 285 mounts. Kazushi Kimora is atop the standings with 82 victories.

Olguin said he did not expect Campos to return before the current Woodbine meet ends in December, then would likely travel to his home in Mexico City for the winter before returning to Toronto for the 2024 meet.

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Letter To The Editor: The Unspoken Safety Factor In Horse Racing Fatalities From The Handicapper’s Perspective

Handicappers use the term “bounce” to explain a poor performance of a horse or to project a possible poor performance. This handicapping angle is more pronounced in demanding stakes races where a horse will often meet a field where only a top performance will result in a placing.

But what does a “'bounce” really mean? It refers to a horse that had a recent fast performance, several tough races in a short period or many races in a racing campaign. The handicapper is implicitly (and unknowingly) using basic biology to posit that a given horse did not have enough time to recuperate before the next race. But what if this notion of “bounce” has more serious implications beyond performance intersecting with that of safety? Well, apparently it does.

After the deaths at Santa Anita in 2019, I began to observe the records of horses that had catastrophic injuries. A certain number seemed to be horses whose racing and training schedule appeared excessive. While it is impossible to say with certainty that over-racing was the case individually, I surmised it had to be one factor in catastrophic injury in the aggregate. Now HISA apparently is looking at this angle regarding horse safety. In its, 2023 Equine Fatalities: HISA's Strategic Response under “data analysis,” it asks, “Would a maximum number of high-speed furlongs (published works and races) either lifetime or within a rolling period reduce equine injury?” The issue is finally on the table in racing's most significant institution.

Dr. Sue Stover, chair of the HISA Racetrack Safety Committee, goes well beyond what handicappers have noticed in their “bounce” notion only to prognosticate a poor performance for a horse. Dr. Stover in the Spring 2023 Churchill Downs Equine Fatalities: HISA Findings under the category “high speed exercise analysis,” concluded–after comparing the Churchill deaths to the control group- -that (indeed) the deceased horses had more races per year and that the data coincides with the notion that, “frequent high injury exercise (as observed in injured horses) that does not allow for recovery of exercise-induced microdamage contributes to the development of stress fractures and subchondral stress which presupposes horses to catastrophic injuries.” Dr. Stover is based at UC Davis and their veterinary webpage regarding catastrophic injuries to racehorses includes “training intensity” as a risk factor. Thus, from Dr. Stover's remarks, the science on thoroughbred injury has already progressed to a point where the new (Churchill) data is being amalgamated with existing hypotheses.

The notion that with the recent deaths at Saratoga and Churchill Downs there is no one risk factor in common does not mean that several risk factors are not known. The industry has come a long way since 2019 and many risk factors or pre-existing conditions are known including the over-racing of horses.

I do not want to mention individual horses as it is impossible to know with certainty in any single case whether a horse's racing and training schedule was the main culprit in a breakdown. Too often, in my view, trainers are being cast as “bad guys” and that's too easy a way to address industry wide problems in relation to safety. And my point is not to prove this notion as it is already part of the science on racing injury.

I wish merely to bring the issue out from the shadows to be part of a necessary discussion on horse safety. But I will relate a few high-profile examples of a horse's racing schedule in horses that broke down in top races dating back to 2019 without mentioning the name of the horse.

Horse A had 13 races in 11 months and broke down in a grade 1 race,
Horse B had 10 races in 12 months mostly at the grade 1 level and died after a workout,
Horse C raced 11 times in 10 months breaking down in a grade 3 stakes,
Horse D had 4 races in 4 ½ months moving up into a grade 1 with less than a month off.

There are other high and low-profile examples and again HISA, in their report, summarizes the horse's racing schedule as part of their analysis. Of course, many horses can handle a tough schedule–there is genetic variation in any species. Nonetheless, the over-racing of a horse is one risk factor that has to be addressed in any overall plan regarding horse safety. It intersects with other issues like medication: rest versus therapy.

Why this factor of over-racing a horse has been understated in recent discussion of horse fatalities until now is due, I suspect, to the implications on possible restrictions for the scheduling of a horse's campaign. It may mean limiting the number of starts per horse per racing level, age, etc. It obviously casts a doubt about the spacing of racing's greatest event: The Triple Crown.

Yes, I support 1/ST Racing's Aidan Butler's efforts to move the Preakness date because of the safety issue alone. Yes, it would be a tough go to factor in a horse's schedule regarding an overall safety plan for thoroughbred racing. But if the horse racing industry is going to completely address the issue of safety, the over-racing of horses (not the racing but the over-racing of a horse) needs to be looked at. There is not a good alternative to not do so.

–Armen Antonian Ph.D.

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