Despite HISA court filings claiming everything was legal and pronouncements that the HIWU anti-doping program starts on March 27th, reality needs to set in on the Thoroughbred industry in the same way it does for a young child who comes to realize that the Christmas Eve Santa tracking report may not be true.
This week's decision and mandate just issued by the Fifth Circuit Court of Appeals is nothing less than a smack down for HISA. It underscores that the constitutional questions are far from settled and may actually break against them. Given the FTC's prior action, this could doom HISA's hope of quick approval of the resubmitted medication control rules.
It's hard for some of us who have been around for a while to watch as this situation could have been avoided. The uncertainty of all this is deeply troubling to everyone.
Despite public pronouncements from Ms. Lazarus that HISA is transparent, the industry has no idea as to their financial stability. Some racetracks are quietly questioning whether to pay the HISA assessments and are researching if they can get their money back if it all goes south. Some testing labs have expressed similar concerns.
As for the States: 1) most could not elect to assume financial responsibility for HISA, and,2) HISA/HIWU has yet to secure any signed ADMC implementation agreements seeking the use of state assets or personnel, with or without reimbursement. It's not that the States are unwilling to help; it has to do with the avoidable problems associated with how HISA organized its programs and neglected to listen to realities raised during the countless implementation calls ARCI organized for them in 2021.
In May, 2022, I announced that most state racing commissions believed technical corrections to the statute were necessary in order for HISA to work. Rather than begin substantive discussions as to how to do that, HISA staff barreled forward and somebody, somewhere decided it was a waste of their time to have HISA leadership talk to me about easier ways to get where they are trying to get.
In August, while on a panel with Ms. Lazarus in Saratoga I proposed that HISA get everyone in a room and come up with an alternate approach to avoid the endless and costly litigation. That didn't happen. My repeated requests to meet privately with the HISA Board to share an independent assessment and an analysis of their options were also ignored. No skin off my back, but it is frustrating when you care about this industry and see a golden opportunity starting to slip away.
On a November American Horse Council call with congressional officials, Jockey Club staff questioned my personal credibility as I was explaining the new financial burden being put on racetracks just as I was making progress convincing a Member of the House Appropriations Committee of the need to add $50 million in federal funding for HISA. Heaven knows they could use it to mitigate the cost being imposed on the racetracks.
When that $1.7 trillion bill eventually passed there was not a dime for racing. Congressman Tonko, when asked by an Albany reporter why no money was included, responded that the industry didn't ask for any. Amazing, absolutely amazing.
Then there were laudatory press statements issued by major HISA supporters praising Senator McConnell for passing a “fix”. All that I could think of was “The Emperor's New Clothes” or the angry ladies in the 1984 Wendy's “Where's the beef?” commercial. Apparently from Tuesday's court action, the tweak to the Act didn't work and racing missed a golden opportunity to have some federal funding.
So here we are. Despite the hard work of many, this is starting to look like a mess.
While the Santa tracking system may not be truth, the children who used to rely on it have found they can still have Christmas. So too for racing. But it may have to look different than what we have now–a fat man stuck in a chimney being pushed by his supporters from above with a stick. There's an easier way if only some people were not so intransigent.
Ed Martin is the President of the Association of Racing Commissioners International, a non-profit group of international regulators which provides a mechanism for collective policy formation, the exchange of information, research, education and training, and integrity advocacy.
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