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Texas Judge Says No to ADMC Injunction

The Texas judge handling the National Horsemen's Benevolent and Protective Association (NHBPA) constitutionality lawsuit that is trying to halt the Horseracing Integrity and Safety Act (HISA) on Wednesday refused to grant an injunction that would delay the May 22 implementation of the Anti-Doping and Medication Control (ADMC) program.

In issuing his order, United States District Court Judge James Wesley Hendrix of the Northern District of Texas (Lubbock Division) pointed out that it is the second time in two weeks that he has informed the plaintiffs in a court order that they have not established a likelihood of success on the merits of their case.

The judge also stated in the May 17 order that the horsemen “misunderstand” the legal standards that apply to the granting of an injunction in this particular instance.

“The Court denies the motion for an injunction pending appeal,” Hendrix wrote. “As detailed in its 55-page Memorandum Opinion and Order [issued May 4], the plaintiffs have not established a likelihood of success on the merits. And even if their proposed standard applied, they have not made a substantial case on the merits given the congressional amendment in response to the Fifth Circuit's opinion…

“Because the plaintiffs have not established a right to an injunction pending appeal under either the correct standard or their preferred standard, the Court denies the motion,” Hendrix wrote.

“The plaintiffs misunderstand the correct standard for a district court considering a motion for injunction pending appeal,” Hendrix continued, adding at a later point, “The 'substantial case on the merits' standard does not apply to injunctions pending appeal.”

The planned appeal to the Fifth Circuit is the latest wrinkle in a lawsuit that has lingered in the courts for over two years.

On Mar. 15, 2021, the NHBPA and 12 of its affiliates sued personnel from the Federal Trade Commission (FTC) and the HISA Authority, seeking to keep HISA from being implemented. Judge Hendrix dismissed that suit on Mar. 31, 2022.

The NHBPA plaintiffs appealed, leading to a Fifth Circuit Court reversal on Nov. 18, 2022 that remanded the case back to Hendrix's court. In the interim, an amended version of HISA got signed into law on Dec. 29, 2022. That fix was designed to make HISA compliant with the constitutional defects the Fifth Circuit had identified.

On May 4, 2023, Hendrix validated the newer version of HISA as constitutional. One day later, the NHBPA informed him it is planning another appeal back to the Fifth Circuit, and it wanted the ADMC's rollout stopped while that process played out.

On May 8, Hendrix wrote that, “The Court previously denied injunctive relief, but the plaintiffs again request an injunction, arguing that they will be injured by the ADMC rule during the pendency of an expected appeal.”

Nine days later, on May 17, Hendrix handed down his decision denying that motion, noting that “the Court is not persuaded by these passing references to [cases that the NHBPA cited as precedents], especially when the plaintiffs have not identified any case in which a district court granted an injunction pending appeal after denying a motion for preliminary injunction (much less following a consolidated bench trial).”

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HISA, FTC Link Grim Headlines to HBPA’s Desire for ‘Status Quo’

In two separate court filings Thursday, the Horseracing Integrity and Safety Act (HISA) Authority and the Federal Trade Commission (FTC) both sharply criticized the National Horsemen's Benevolent and Protective Association (NHBPA)'s decision to seek an injunction that would delay the May 22 implementation of the Anti-Doping and Medication Control (ADMC) program.

What stood out was that neither the HISA Authority nor the FTC shied from trying to link the NHBPA's desire to maintain the “status quo” to the grim headlines that have dominated the sport over the past week.

“Seven horses died in the lead up to last weekend's [GI] Kentucky Derby,” the FTC's opening line in the May 11 filing stated. “Reporters, not mincing words, observed that the accidents 'overwhelmed' the [D]erby with 'the stench of death.' Congress passed HISA in 2020 to protect horses and prevent these kinds of tragedies, but the Horsemen Plaintiffs have repeatedly challenged the statute and the FTC's implementing rules.”

Drawing similarly from recent adverse events, the HISA Authority's response referenced a May 9 New York Times story that broke the news of Forte's failed New York State Gaming Commission drug test that ran under the sub-headline, “Horse racing is again caught up in a controversy.”

The HISA Authority alleged that, “Plaintiffs' request for 'state regulation' to forestall the federal regulatory scheme Congress mandated would plunge the industry back into the 'existential crisis' of inconsistent regulation [and] recent headlines provide fresh reminders…”

United States District Court Judge James Wesley Hendrix of the Northern District of Texas (Lubbock Division) will now have to weigh those assertions against those filed by the NHBPA in its May 5 request for the ADMC injunction.

The lawsuit initiated by the HBPA to try and derail HISA on alleged anti-constitutionality grounds is now past the two-year mark. The thrice-delayed ADMC is on target to begin in 10 days.

On Mar. 15, 2021, the NHBPA and 12 of its affiliates sued the FTC and HISA Authority personnel, seeking to permanently enjoin the defendants from implementing HISA, bringing claims under the private-nondelegation doctrine, public nondelegation doctrine, Appointments Clause, and the Due Process Clause.

Judge Hendrix dismissed that suit on Mar. 31, 2022. But the NHBPA plaintiffs appealed, leading to a Fifth Circuit Court reversal on Nov. 18, 2022, that remanded the case back to the Lubbock Division. In the interim, an amended version of HISA was signed into law Dec. 29, 2022. That fix was designed to make HISA compliant with the constitutional defects the Fifth Circuit had identified.

On May 6, 2023, Hendrix validated the newer version of HISA as constitutional. Now the NHBPA is planning another appeal back to the Fifth Circuit, and it wants the ADMC's rollout stopped while that process plays out.

The May 5 filing by the NHBPA explained the reasoning behind its request:

“An injunction is necessary because the industry cannot endure 'seismic change' in the short term that is undone shortly thereafter. The courts should not put the industry on a roller-coaster where the ADMC rules are in effect from May 22 to [some future date when] they go out of effect again if the Fifth Circuit finds the amended law unconstitutional.”

Hendrix, in a May 8 order, told the HISA Authority and the FTC that they had to reply to the NHBPA's motion for an injunction within 72 hours, signaling that he did not plan to let this decision linger.

“Plaintiffs are neither entitled to that relief nor to any other remedy,” the FTC's May 11 filing stated. “And the equities–both equine and otherwise–point decidedly against Plaintiffs.”

The FTC alleged that it “makes no difference that Plaintiffs previously prevailed on their nondelegation challenge before Congress amended HISA. And they do not argue about their chance of success on any of their other theories…. Because Plaintiffs stand almost no chance of success, their motion for a stay should be denied on that basis alone.”

The HISA Authority's filing put it this way: “Congress, the Executive, and both federal courts [have] come to the same correct conclusion: the Act is now constitutional. The HBPA Plaintiffs nevertheless ask for the extraordinary relief of an emergency nationwide injunction pending appeal…

“While Plaintiffs' speculation about irreparable harm from the ADMC rules is at best conflicted, an injunction of the ADMC rules would inflict certain injury on Defendants and the public interest,” the HISA Authority's filing stated.

“These final two factors weigh heavily against halting a federal regulatory scheme that has long been planned and that enjoyed substantial compliance in its brief initial rollout…”

“Because Plaintiffs have not shown that their appeal has substantial merit (let alone a likelihood of success) and have not demonstrated that the balance of equities tilts in their favor at all (let alone heavily), the Court should deny Plaintiffs' motion for an injunction pending appeal,” the HISA Authority's filing stated.

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HISA Launches Whistleblower Platforms

The Horseracing Integrity and Safety Authority's Integrity and Welfare Unit has launched anonymous whistleblower platforms that will allow Thoroughbred industry participants to submit tips about potential violations of its Anti-Doping and Medication Control Program. The text and email platforms are supported through a partnership with RealResponse, the leading provider of safe and secure reporting platform for athletes, teams, and organizations, while the telephone platform is supported by Ansafone.

“Our anonymous whistleblower platforms will empower concerned individuals to safely and securely alert HIWU to potential violations of the AMDC Program, including situations where the welfare of the horse or integrity of the sport may be compromised,” said Michelle Pujals, HIWU's general counsel. “We look forward to working with RealResponse, which has a proven track record in administering this type of technology, to facilitate the success of this key component of the ADMC Program.”

Individuals who would like to submit tips have the following contact options: phone line: (888) 714-4498; text line: (855) 901-8477; email: hiwutips@hiwu.realresponse.com.

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HISA Q&A: The ADMC Program

Edited Press Release

With the anticipated March 27 implementation of the Horseracing Integrity and Safety Authority's (HISA) Anti-Doping and Medication Control (ADMC) Program approaching, it's increasingly important for all racing participants to understand how the Program will work. The following are HISA's answers to five frequently asked questions about the ADMC Program.

How will the new HISA ADMC Program impact the lives and workflow of horsemen?

The ADMC Program is designed to create centralized testing and results management processes and apply uniform penalties for violations efficiently and consistently across the country. Its rules will institute uniformity across jurisdictions, consistency in how laboratories test for substances, and swift and efficient adjudication practices.

Under the Horseracing Integrity and Welfare Unit (HIWU), all sample collection personnel will receive in-person training on HIWU's uniform chain of custody process and digital data collection technology. The HIWU app that sample collectors will use will significantly reduce the previously required paperwork involved in the testing process and enable horsemen to receive electronic receipts of their horses' sample collection.

For the first time, labs across the country will be testing for the same substances at the same levels. The ADMC rules establish separate categories for Prohibited Substances that are allowed outside of race day and other specific periods (i.e., Controlled Medications) and substances that are never allowed to be in a horse (i.e., Banned Substances). This system is meant to appropriately penalize those who use Banned Substances, while being sensible and proportionate when it comes to Controlled Medication violations.

In addition to in-competition testing at racetracks, HIWU will introduce a strategic Out-of-Competition testing program that will incorporate intelligence and data analysis in the selection of Covered Horses. Responsible Persons (i.e., trainers) of Covered Horses selected for Out-of-Competition testing will have the option of either having their horse tested wherever it is currently located, or at another mutually agreed upon site as long as the Covered Horse is made available for testing within six (6) hours of notification.

To support its Investigations Unit, which will work to identify bad actors through intelligence gathering from industry participants and data analysis, HIWU will launch anonymous whistleblower platforms to enable individuals to anonymously submit concerns regarding suspected violations of the ADMC Program.

Who is in charge of HIWU, the organization tasked with implementing the ADMC Program?

HIWU was established by Drug Free Sport International (DFSI) to be the independent enforcement agency of HISA's ADMC Program. HIWU is independent from, but in frequent communication with, HISA on the implementation of the ADMC Program. HISA's ADMC rules are ultimately vetted and approved by the Federal Trade Commission (FTC).

HIWU is led by Executive Director Ben Mosier, who has overseen anti-doping programs for the NBA, the PGA Tour, MLB's Minor League Program, and NASCAR.

HIWU's chief of operations, Kate Mittelstadt, previously served as director of the Anti-Doping Program for IRONMAN and has held multiple roles with the World Anti-Doping Agency and Association of National Anti-Doping Organizations. Mittelstadt was also one of the first employees hired by the U.S. Anti-Doping Agency.

HIWU's general counsel, Michelle Pujals, was a member of the NBA's legal department for more than 20 years, where her duties included results management for, and investigations related to, the NBA's various drug programs and allegations of player and staff misconduct. Before joining HIWU, she was the owner and principal of Tautemo Consulting, LLC, a legal and sports consulting firm.

HIWU Chief of Science Dr. Mary Scollay was most recently the executive director and chief operating officer of the Racing Medication & Testing Consortium, prior to which she worked for more than 30 years as a racing regulatory veterinarian, including 11 years as the Kentucky Horse Racing Commission's equine medical director.

How does the ADMC adjudication process work and what happens if someone is charged with a violation?

Violations under the ADMC Program are categorized as Anti-Doping Rule Violations (ADRV), which involve Banned Substances and Methods, or Controlled Medication Rule Violations (CMRV), which involve Controlled Medications and Methods. There will be harsher penalties associated with ADRVs.

ADRV cases will be heard by an Arbitral Body chosen and appointed to cases by JAMS, a world-renowned arbitration and mediation provider with a panel of retired lawyers and judges who are experienced in anti-doping and sports adjudication. Before selecting individuals to hear cases, JAMS will ensure that there are no conflicts of interest between potential adjudicators and the Covered Person(s) involved.

CMRV cases will be heard by appointees to the Internal Adjudication Panel (IAP), a group of 15-20 members selected by HISA and HIWU based on their previous equine regulatory experience. The IAP pool includes state stewards, who are only permitted to hear cases that do not originate in the state in which they are employed, and others with equine regulatory experience. IAP members will be appointed to hear specific CMRV cases on a rotating basis following conflicts-of-interest checks.

All members of both the Arbitral Body and IAP must undergo initial training and continuing education on the ADMC regulations to be eligible to hear and decide cases.

When charged with an ADRV, Covered Persons and Horses will usually be issued Provisional Suspensions, during which time they will be ineligible to train or race until the matter has been resolved and associated penalties have been served. Covered Persons subject to Provisional Suspension are not permitted to be involved in any activity involving a Covered Horse at a racetrack or public training facility. They can, however, request a timely Provisional Hearing to advocate for lifting the Provisional Suspension.

For most alleged CMRVs, Provisional Suspensions will not be issued unless the Controlled Medication was used within a period of Ineligibility defined in the Prohibited List.

For both ADRV and CMRV cases, Covered Persons are entitled to the opportunity to provide written submissions and present evidence on their behalf to the assigned adjudicator(s).

HIWU is required to publicly disclose the resolution of an ADMC Program case within 20 days of (1) a final decision, (2) a resolution between HIWU and the Covered Person, or (3) the withdrawal of a charge by HIWU. Final decisions of the Arbitral Body and IAP can be appealed to a federal Administrative Law Judge.

ADMC violations that arise from a Post-Race Sample or that occur during the Race Period automatically lead to the disqualification of race-day results. For ADRVs, any other results that the Covered Horse obtained from the date the ADRV first occurred will also be disqualified.

If a horse is disqualified due to an ADRV or CMRV, all purses and other prizes will be forfeited and redistributed accordingly. When possible, the purse for the Covered Horse involved in the alleged violation will be withheld until a resolution has been reached.

While the purse will be affected by ADMC violations and disqualifications, the wagering payouts that are published after a race is declared official on race day are the final payouts, regardless of any disqualifications subsequently issued.

How are HISA and HIWU preparing the sport for implementation of the rules?

HIWU staff have so far visited all racetracks that will be racing on March 27 and met with local test barn staff, veterinarians, stewards, and other personnel to observe current practices, evaluate test barn facilities, and help prepare personnel on the ground for the implementation of the ADMC Program. HIWU will visit each racetrack prior to their next meet start date after March 27 and hold in-person training events for test barn personnel prior to collections being conducted at each location. Over the last several months, the HIWU team has also met with industry stakeholder groups in-person and virtually to discuss the ADMC Program and answer questions.

HIWU plans to visit numerous tracks ahead of the expected March 27 implementation date to talk to stakeholders and encourages industry organizations interested in hosting informational sessions where members can speak with the HIWU team to email info@hiwu.org to request to schedule a virtual or in-person meeting. Visits and outreach will continue after implementation, as well.

The HIWU website is also home to educational material on the Prohibited List, Detection Times and Screening Limits, test types, results management, and more. Additional educational materials will continue to be published and shared broadly with the industry.

How will the ADMC rules improve racing and help the sport grow?

The ADMC Program is central to HISA's mission to ensure the integrity of racing to the benefit of participants, fans, and bettors. HISA's rules are designed to improve the safety and welfare of horses and restore public trust in the sport.

Bettors will be able to trust that the product on the track is fair and that cheaters are not welcome in Thoroughbred racing. All signs indicate that the enforcement of consistent, national ADMC rules will ultimately lead to broader public interest, including from younger audiences, and increased wagering.

Importantly, besides making the sport safer and fairer, the ADMC Program will also make the jobs of many horsemen easier as the patchwork of state-by-state rules are replaced with a unified, streamlined anti-doping regulatory system.

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