Anti-doping and Medication Control | Horse Racing Free Tips

One Month In, HIWU Issues an Update

From the desk of Ben Mosier, Executive Director, Horseracing Integrity & Welfare Unit (HIWU):

The last four weeks have represented the culmination of more than a year of planning and countless hours of preparation by the HIWU team to put forth the best national Anti-Doping and Medication Control (ADMC) Program possible for Thoroughbred racing. It has been incredibly rewarding to see HISA's ADMC Program get off the ground successfully. Through Sunday, June 18, HIWU-trained and certified sample collection personnel have collected samples from over 6,500 horses from more than 20 tracks nationwide. The samples are being analyzed by one of six approved laboratories, which are all testing for the same substances at the same levels. Furthermore, our anonymous whistleblower platforms are active, and our investigative staff have been reviewing the tips submitted to determine further action, when appropriate.

The Belmont Stakes was the first Triple Crown race to be conducted under HISA's ADMC Program. More than a dozen members of the HIWU team were on site at Belmont Park to assist operations, which included supporting the local sample collection personnel and investigators. The New York Racing Association (NYRA) has been a great partner with us, and we appreciate their collaboration to help make this historic race a success.

With our first month of enforcement now complete, I would like to remind industry participants that HIWU must follow specific public disclosure requirements when there are violations of the ADMC Program. In the case of a positive test for a Banned Substance, HIWU must publish the violation on our website upon the imposition of Provisional Suspensions to the Covered Person and Covered Horse. This will occur after HIWU receives the positive test result for the A Sample. For a positive test associated with a Controlled Medication, the violation will be published once the B Sample confirms the positive test or the Covered Person waives the right to test the B Sample. Non-presence cases (i.e., cases not involving a positive test) will be published after a Provisional Suspension is imposed on the Covered Person or a Charge Letter is served, whichever is earlier.

We expect that most cases will be public within weeks and resolved within a few months, which will be a welcome change from previous protocols.

HIWU recognizes the importance of continually offering education opportunities to help facilitate compliance among those impacted by the ADMC Program. In addition to HIWU's Education & Resources page, our team is available to meet with stakeholders and/or industry groups in person or virtually. Groups who would like to request a meeting should contact Stephanie Jenson at sjenson@hiwu.org.

With our busiest months still to come, my team and I are excited to continue enforcement across the country and to maintain our relationships with the stakeholders who have made our efforts possible, from state racing commissions, racetracks, and laboratories to horsemen, veterinarians, and stewards. I am confident that this Program will ultimately enhance the health and safety of our equine and human athletes while promoting a level playing field that benefits the sport's honest participants.

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HISA’s Lasix Advisory Committee Set

Edited Press Release

The Horseracing Integrity and Safety Authority (HISA) announced the members of an Advisory Committee which has been convened to oversee a three-year study on the use of furosemide (also known as “Lasix”) on horses during the 48-hour period before the start of a Covered Horserace, including the effect on equine health and the integrity of competition.

The establishment of this Advisory Committee for the study of furosemide administration and the requirements of the study are specifically mandated and set forth in the Horseracing Integrity and Safety Act. The HISA Board of Directors delegated its authority to select the Advisory Committee members to HISA's Anti-Doping and Medication Control (ADMC) Committee who did so based on the members' relevant expertise. The Advisory Committee will oversee the process of issuing a Request for Proposal to conduct the research, reviewing grant applications from academic researchers and allocating grant funding for the study.

When the independent scientific research has been completed and published, it will be presented to the Advisory Committee who will then relay the findings and their recommendations to the HISA Board of Directors.

The Furosemide Advisory Committee is comprised of the following members:

Emma Adam, DVM, Ph.D., is a veterinarian with over 24 years of racing experience in the United States, United Kingdom, France and Australia. She is board-certified in equine medicine from Texas A&M University and in surgery from the New Bolton Center at the University of Pennsylvania. Dr. Adam also received her Ph.D. in musculoskeletal science from the University of Kentucky's Gluck Equine Research Center.
Alan Foreman is Chairman of the Thoroughbred Horsemen's Association (THA) and Vice-Chairman of the Racing Medication and Testing Consortium (RMTC). Foreman is considered one of the leading racing law and equine attorneys in the United States and is an expert on medications used in horse racing.
Scott Hay, DVM, is a veterinarian at Teigland, Franklin and Brokken, where he focuses on lameness, performance evaluations and purchase examinations. He also serves on the RMTC's Scientific Advisory Committee. Dr. Hay previously served as President of the American Association of Equine Practitioners (AAEP) and as a member of the Grayson-Jockey Club's Scientific Advisory Committee.
Ted Hill, VMD, is a racing steward for The Jockey Club with more than 23 years of experience. He previously served as Chief Veterinarian for the New York Racing Association (NYRA). Dr. Hill received his VMD from the University of Pennsylvania.
Rob Holland, DVM, Ph.D., is a respiratory and infectious disease specialist in Lexington, Kentucky and partner at Holland Management Services, Inc., a consulting practice offering solutions in outcomes research and veterinary medicine. Dr. Holland has worked with the Kentucky Horse Racing Commission (KHRC) and is an expert in equine drug testing processes.
Heather Knych, DVM, Ph.D., DACVCP, is a Professor of Clinical Veterinary Pharmacology and Head of the Pharmacology Section at the K.L. Maddy Equine Analytical Chemistry Pharmacology Laboratory at the School of Veterinary Medicine at the University of California, Davis. Dr. Kynch is board-certified in Clinical Veterinary Pharmacology and has an extensive publication record in the areas of pharmacokinetics and pharmacodynamics. She received her DVM and Ph.D. in Pharmacology and Toxicology from the University of California, Davis, where she also conducted her residency in Veterinary Pharmacology.
Ryan Murphy is the Executive Director for the Partnership for Clean Competition (PCC), the leading anti-doping research organization dedicated to the protection of clean athletes. Prior to joining the PCC, Murphy served as Program Officer with the Sports Diplomacy division at the U.S. Department of State and prior to that as Senior Manager for Sport & Competition for Special Olympics International. Murphy has also worked as an International Doping Control Officer for International Doping Tests & Management. In addition to his work at the PCC, Murphy serves as an Adjunct Professor for the Sports Industry Management Master's program at Georgetown University.
Foster Northrop, DVM, is a practicing racetrack veterinarian with more than 35 years of industry experience. He has served on the boards of the KHRC and American Veterinary Medical Association (AVMA), as well as the RMTC's Scientific Advisory Committee.
Scott Palmer, VMD, is a former President of the AAEP and the American Board of Veterinary Practitioners (ABVP). He also chaired the New York Task Force for Racehorse Health and Safety from 2011 to 2013 and served as a clinician and referral surgeon at the New Jersey Equine Clinic for 38 years. He is currently a member of the RMTC's Scientific Advisory Committee, the Horseracing Testing Laboratory Committee, the Association of Racing Commissioners International's (ARCI) Drug Testing and Standards Committee and the ARCI's Equine Welfare and Veterinarians Committee.
N. Edward Robinson, BVetMed, Ph.D., is a nationally recognized veterinarian, academic and researcher who spent nearly 50 years at Michigan State University's College of Veterinary Medicine, during which he spent more than 20 years as the Matilda R. Wilson Professor of Large Animal Clinical Sciences. Dr. Robinson has spent his career researching lung disease in horses. He received his veterinary degree from the Royal Veterinary College in London and a Ph.D. from University of California, Davis.
Corinne Sweeney, DVM (HIWU Appointment), is an American College of Veterinary Internal Medicine (ACVIM) specialist and has spent the past 44 years at the University of Pennsylvania School of Veterinary Medicine. She has served as a member of the Pennsylvania State Horse Racing Commission since 2008 and previously served as Chair of the ARCI in 2019. She is a certified Organizational Ombuds Practitioner and has served as the Penn Vet Ombuds since 2015.

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FTC: Latest Anti-HISA Suit Doesn’t Come ‘Within a Furlong’ of Demonstrating Harms

The Arkansas-based lawsuit filed six weeks ago that is the most recent among five separate federal complaints attempting to derail the Horseracing Integrity and Safety Act (HISA) via alleged constitutionality claims was broadly rebuffed Monday in separate legal filings by the defendants in the case, who are executives with the HISA Authority and the Federal Trade Commission (FTC).

The plaintiffs, led by Bill Walmsley, president of the Arkansas Horsemen's Benevolent and Protective Association (HBPA), and Jon Moss, the executive director of the Iowa HBPA, had asked a judge in United States District Court (Eastern District of Arkansas, Northern Division) on Apr. 6 to declare HISA unlawful and to impose an injunction prohibiting the defendants from enforcing the Anti-Doping and Medication Control (ADMC) rules scheduled to go into effect May 22.

The HISA Authority's opposition brief stated that the plaintiffs in this case, much like those in the other four cases currently swirling in the federal court system, represent only “a faction of the industry long opposed to any change” who continue to “search for a favorable forum” by essentially making similar arguments in front of different judges.

And, the HISA Authority's filing pointed out, both Walmsley and Moss are already involved as parties who have taken various legal actions in three of the other four anti-HISA cases.

“Apparently discontent with those courts' rulings, the Iowa HBPA, Walmsley, and Moss now seek the same extraordinary relief here,” the HISA Authority's May 15 filing stated.

The HBPA-affiliated plaintiffs wrote in their complaint last month that HISA “barely pretends to comply with the Constitution's separation of powers. The Act allows a private corporation to issue binding rules with no guiding principle. The FTC's ostensible oversight serves as a mere mirage.”

The HISA Authority saw the situation differently in its filing.

“The vast majority of industry participants and horseracing states have welcomed the uniform national standards, which took effect on July 1, 2022. Two [presidential] administrations have now supported the law and two bipartisan Congresses have embraced it–including through a statutory amendment that reinforced the Act's constitutionality in December 2022,” the HISA Authority's filing stated.

“Plaintiffs come nowhere near the showing required for a court to dismantle this critical federal regulatory program. Most notably, Plaintiffs cannot demonstrate a likelihood of success on the merits: All four federal judges that have considered Congress's recent amendment to HISA have concluded that the Act is constitutionally sound,” the HISA Authority's filing stated.

“Plaintiffs next rely on a meritless public nondelegation claim that the challengers in the other cases wisely abandoned, or did not consider worth [pursuing], in light of the clear intelligible principles Congress provided,” the HISA Authority's filing stated.

“And Plaintiffs' final claim under the Appointments Clause is contradicted by the undisputed fact that the Authority is not a governmental entity [and] by the decisions of the two federal courts that have already denied the same Article II claim,” the HISA Authority's filing continued.

“None of the other preliminary injunction factors favor Plaintiffs, either. Plaintiffs fail to show irreparable harm: They have been subject to HISA's racetrack safety rules for over 10 months and to similar anti-doping rules under State law for years; purses in Arkansas and Iowa have surged; and the racing season in Arkansas has now ended,” the HISA Authority's filing stated.

“The balance of harms and the public interest also weigh heavily against disrupting a federal regulatory scheme that Congress has mandated (twice) and that has enjoyed substantial compliance already,” the HISA Authority's filing stated. “This Court should deny Plaintiffs' motion for a preliminary injunction.”

The FTC's May 15 filing put it this way: “[The plaintiffs] do not come within a furlong of demonstrating, with evidence, that any purported 'harm is certain and great and of such imminence that there is a clear and present need for equitable relief.'”

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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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