Top 10 Ways HISA Will Change Racing

Edited Press Release

The anticipated implementation of the Horseracing Integrity and Safety Authority's (HISA) Anti-Doping and Medication Control (ADMC) Program by the Horseracing Integrity & Welfare Unit (HIWU) on Mar. 27 will strengthen equine welfare and enhance confidence in the fairness of the sport. Here are the top 10 ways HISA's ADMC Program will change racing for the better:

1. For the first time, rules will be uniform and standardized across all states.

The ADMC Program will bring all testing and results management under one central authority, ensuring greater transparency, accountability and consistent application across the country.

2. A paperless chain of custody and collection system will be deployed nationwide.

Sample collection personnel, who will all be trained and certified by HIWU on ADMC Program-compliant protocols, will utilize a paperless system via HIWU's new app, greatly reducing the current inefficient and time-consuming paperwork requirements. The app electronically records the entire sample collection process, and horsemen can receive an electronic receipt of their horses' test sessions via email.

3. Laboratories will be accredited, and their processes harmonized, enabling test results to come back faster in many jurisdictions.

All laboratories that will conduct testing under the ADMC Program must be accredited by the Racing Medication and Testing Consortium (RMTC) and meet the performance specifications to enter into a contract with HIWU. This ensures all labs will be held to the same performance standards regardless of the state they operate in. The harmonization of laboratory processes will ensure consistency in every aspect – from the list of substances tested to the levels at which they are tested. As a result, horsemen can have greater confidence in testing results and assurance that any local, lab-specific factors are not affecting testing outcomes.

Laboratory result turnaround times will enable test results to be delivered promptly so that any procedural issues can be dealt with swiftly. The standard turnaround time will be no more than 10 business days after receipt of the samples for Post-Race test results and no more than five business days for Vets' List clearance test results – a significant improvement for many jurisdictions.

4. ADMC violations will be clearly divided into two categories with differing degrees of penalties.

HISA's ADMC Program explicitly divides substances on its Prohibited List into two categories: (1) Controlled Medications (therapeutic substances that are permitted outside of race day and other specific periods); and (2) Banned Substances (substances that should never be present in a horse).

The substances are categorized differently because HISA recognizes that they can have different effects on a horse and should result in different consequences. Violations involving Controlled Medications and Methods are categorized as Controlled Medication Rule Violations (CMRV), while violations involving Banned Substances and Methods are categorized as Anti-Doping Rule Violations (ADRV). Harsher penalties will be associated with ADRVs because Banned Substances are detrimental to equine welfare, often enhance performance and should never be present in a horse's body.

5. The national results management system will be managed by one central authority rather than a patchwork of local entities.

The results management and adjudication processes under the ADMC Program are organized specifically to avoid potential local biases and ensure swift and consistent outcomes for all racing participants. Under this system, all laboratory test results will be sent directly to HIWU, which will notify individuals of Adverse Analytical Findings (positive tests) and be responsible for the investigation and prosecution process.

Adjudication decisions will be made by the Internal Adjudication Panel (IAP) for CMRVs and the independent Arbitral Body for ADRVs – replacing the previous inconsistent adjudication processes run by state courts, state racing commissions, and stewards. Final decisions by the IAP and Arbitral Body can be appealed to a federal Administrative Law Judge.

6. Anti-Doping Rule Violations involving the presence, use, administration, or attempted administration of a Banned Substances will automatically trigger a Provisional Suspension of the relevant Covered Person, pending full adjudication.

This measure is critical to ensuring integrity in our sport and is a departure from the processes which previously allowed cheaters to evade accountability by exploiting the rule discrepancies in various jurisdictions, continuing to race as they filed appeals and avoided sanctions – including disqualifications – through lengthy litigation.

7. Testing will be intelligence-based so HIWU is able to effectively catch cheaters while using resources efficiently.

The ADMC Program will introduce an intelligence-driven strategic testing plan to be deployed uniformly across the country. Intelligence-based testing has proven effective in catching bad actors when used in other sports and jurisdictions. HIWU's operations team will take an interdisciplinary approach in its allocation of testing across the country with a focus on ensuring the quality and effectiveness of the doping control process.

The operational strategy will also be informed by collaboration with HIWU's investigations unit to incorporate and act on pertinent information received through its anonymous whistleblower platforms. Intelligence from “boots-on-the-ground” industry participants, including stewards and veterinarians, and continued cooperation with state racing commissions and laboratory/scientific partners will inform the test selection process.

8. A discretionary policy for positives resulting from potential environmental contamination is in place.

The ADMC Program's Atypical Findings Policy requires additional investigation in any instance in which a horse tests positive for a substance that has a higher risk of being present as a result of environmental contamination rather than intentional administration. If HIWU determines that the substance was present due to contamination, the test result may be considered negative, and no penalties will be issued.

9. More Out-of-Competition testing than ever before.

Under HISA's ADMC Program, HIWU will oversee the introduction of the first nationwide Out-of-Competition (OOC) testing program for Banned Substances. This extra layer of testing will weed out those who do not operate with integrity, deter others from doing the same and prioritize equine welfare year-round.

OOC testing will only regulate Banned Substances – not Controlled Medications. If a Covered Horse is located on private property, and the Responsible Person does not want sample collection personnel entering the property, they have the option to bring the Covered Horse to a location that is mutually agreed upon with HIWU e.g., racetrack, as long as the Covered Horse is presented at that location within six hours of notification of testing.

10. Investigations will be led by former law enforcement officers and seasoned racing experts.

HIWU's investigations unit, which will help lead the enforcement of the ADMC Program, is led by former law enforcement officials with considerable experience in the racing industry.

Naushaun “Shaun” Richards, who will serve as Director of Intelligence & Strategy, joined HIWU after a 23-year tenure with the FBI, where he initiated and directed the criminal investigation that resulted in the indictments of more than 30 individuals across the racing industry. Shawn Loehr, who will serve as Director of Investigative Operations, previously spent more than 27 years in California law enforcement, most recently spending nearly four years as the chief of enforcement and licensing for the California Horse Racing Board.

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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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California First to Sign Voluntary Agreement, Pay HISA 2023 Fees

The Golden State is the first jurisdiction in the country to sign a voluntary agreement with the Horseracing Integrity & Welfare Unit (HIWU) to continue performing a host of vital roles when the Horseracing Integrity and Safety Act's (HISA) drug control program goes into effect Mar. 27, according to a statement Friday by the California Horse Racing Board (CHRB).

In another first among the nation's racing jurisdictions, the CHRB also agrees to pay HISA's 2023 fee assessment. The total figure for the state is more than $6.7 million. However, after HISA's credits have been applied, the final amount that California owes HISA comes out to roughly $1.5 million, according to the voluntary agreement.

“The CHRB has been enforcing and complying with safety regulations that HISA introduced July 1, 2022. Under the new agreement, the CHRB will implement rules under the Anti-Doping and Medication Control (ADMC) Program, which are scheduled to go into effect March 27, 2023,” the CHRB's Friday statement read.

Under the voluntary agreement–shared by CHRB executive director Scott Chaney with TDN–the CHRB agrees to continue performing certain tasks for the HISA Authority and for HIWU, including the collection of equine samples, and the testing of these samples at the University of California, Davis's Kenneth L. Maddy Equine Analytical Laboratory.

In turn, U.C. Davis's “Maddy Lab” also becomes the first laboratory to officially sign onto HIWU's drug testing program.

Because state racing commissions and their respective industries already pay for many of HIWU's anti-doping and medication control program components, HISA is offering credits as subsidies to its annual fees.

According to California's voluntary agreement, the commission's total “state testing credit” will be $4.7 million. This includes some $1.2 million for sample collection and $3.5 million for laboratory costs such as race-day testing, research, and the analysis of samples from other states.

California also receives an additional out-of-competition testing credit estimated to be around $450,000 annually.

“If the costs for out-of-competition testing outside of Race Day pursuant to this Paragraph exceed $450,000 at the end of 2023, the Commission will receive an additional credit for 2024 in the amount of the excess costs,” the voluntary agreement reads.

“The CHRB is proud of our work and record in safety and animal welfare, and therefore we want to have a role in shaping policy going forward,” said Chaney in the statement issued Friday. “We have partnered and supported the national effort from the beginning and appreciate the dedication of the Authority and HIWU.”

The CHRB's statement adds: “The CHRB and representatives of the Del Mar Thoroughbred Club, 1st Racing, the Thoroughbred Owners of California, and UC Davis have been advising HISA all along, promoting California's strict regulatory program, and partly for that reason the federal rules are similar to those in California, meaning participants in California horse racing will need to make fewer adjustments than some of their counterparts in other racing jurisdictions.”

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Lucinda Finley Q&A: “Long Litigation Road Ahead” For HISA

The Congressional amendment to the Horseracing Integrity and Safety Act (HISA) at the end of last year–affording the Federal Trade Commission (FTC) more rule-making governance–has not yielded a pause on the legal maneuverings surrounding the law.

Already this year, the Fifth Circuit Court of Appeals denied a motion by the HISA Authority for that court to vacate its recent opinion that HISA is unconstitutional, and instead sent two different cases back down to the district court level.

In response, the Texas Racing Commission–which has so far barred the federal law from being enforced in its jurisdiction–said the action meant Texas tracks could once again beam their simulcasting signals out-of-state. Sam Houston, which is currently running, has so far refrained from taking that course due to the “” swirling around the matter.

At the end of January, the FTC published HISA's Anti-Doping and Medication Control (ADMC) rules on the Federal Register, initiating a 14-day public comment period. Should the FTC approve them, HISA has set a program implementation date of March 27.

All the while, two other HISA-related lawsuits are working their way through the courts–one currently before the Sixth Circuit Court of Appeals, and the other in the Texas Northern District Court, Amarillo Division.

To get a handle on where all this leaves HISA, the TDN once again spoke with constitutional law expert Lucinda Finley, Frank Raichle Professor of Trial and Appellate Advocacy, and director of Appellate Advocacy at the University of Buffalo Law School.

The following is heavily edited from a longer interview.

TDN: Can you give an overview of where all the latest legal actions that have come down since we last spoke leave HISA?

LF: No court has yet ruled on whether the newly amended HISA–which gives the FTC greater authority to accept, reject, or modify the HISA Authority's proposed rules–is constitutional or not. But the congressional amendments to HISA do put it on stronger legal footing on the single issue that the U.S. Court of Appeals for the Fifth Circuit addressed, the private delegation doctrine, or in non-legal parlance, whether HISA granted too much authority to make rules to a private body, instead of the FTC.

The congressional amendments make it clear that the FTC has at least as much regulatory authority as the Securities and Exchange Commission [SEC] does when it considers whether to adopt rules proposed by a private body. The SEC rule making structure has repeatedly been ruled constitutional by many federal courts.

But despite how the congressional amendment responds to the Fifth Circuit concerns about the previous version of the HISA statute, it is not surprising to me that the Fifth Circuit panel refused to consider whether to vacate their opinion or to rehear the case. It is standard appellate procedure for a federal appellate court, after they've initially ruled, to send things back to the district court. The district court will be the first one to determine whether the amendments that Congress recently made are sufficient to satisfy the concerns that the Fifth Circuit had.

The other thing that the Fifth Circuit did is to lift a stay or a suspension of an injunction that another district court had issued against enforcing HISA in Louisiana and West Virginia. So, HISA cannot legally enforce its rules in those two states. But what HISA can do is go back to that district court and argue that the recent congressional amendments have satisfied the constitutional concerns raised by the Fifth Circuit–therefore that the amendments make HISA constitutional–so they could ask that district court to remove its injunction against enforcing HISA in West Virginia and Louisiana.

How I interpret the recent Fifth Circuit decision not to vacate its November ruling and not to rehear its November decision is to simply say: Take your arguments back to the district courts, let the district courts consider those arguments in light of our November ruling and in light of the amended statute.

TDN: Do they go back to the same district court?

LF: No, they go back to the district courts in which each case originated. One of them goes back to a district judge who initially found HISA, even before Congress amended it, to be constitutional. The other case, the West Virginia and Louisiana case, goes back to a district judge who expressed grave concerns about HISA's constitutionality prior to amendment.

TDN: In the district courts, are the plaintiffs likely to challenge other provisions of HISA?

LF: Several of the cases challenging HISA do raise other constitutional challenges in their original complaints, and they can argue all those other challenges back in the district court. If they didn't raise them [before], they could possibly ask to amend their complaints to raise other constitutional challenges.

In cases against HISA filed around the country, some of them challenge the way members of the private Authority are appointed, arguing that because they are functioning like federal government officials, they should be appointed through the process the constitution and federal statutes lay out for appointing and removing federal officials.

Now, that argument could be affected by Congress's recent amendments.

Before HISA was amended, plaintiffs' main argument was it delegated too much governmental authority to the private Authority, thus the private Authority was really acting like a governmental agency. So, if the courts think the new congressional amendments now leave the FTC with greater final say over what the HISA rules are, a judge may be less likely to accept the challenges to how members of the private Authority and its board are appointed. Again, to compare the HISA structure to the SEC, the way that members of the private body–known as FINRA–that proposes rules to the SEC are appointed has been upheld.

There are also cases bringing constitutional challenges to the private Authority's investigatory and enforcement powers. They claim that giving so much authority for investigating and punishing violations to a non-governmental body violates due process of law. No court has yet decided that argument.

In my opinion, that constitutional argument is weaker because under the HISA statute, there is a process for appealing any sanction based on an investigation of a rule violation–it can go up through a well-established administrative appeal process with federal administrative law judges, who are the ones hearing the appeal.  That means that no punishment is final until it is ruled on by a federal official.

TDN: What you're saying is the Congressional amendment potentially has influence on the overall constitutionality of HISA beyond that one provision it was designed to fix…

LF: Yes. Congress's amendments to HISA responded only to what the Fifth Circuit had found to be the problems. But those problems were kind of an umbrella. The fifth Circuit issue was: Did the statute give too much regulatory authority to the private Authority? Congress's amendment has addressed that and clarified that the FTC is now a lot more than a rubber stamp.

And so, if a judge now decides that that congressional amendment makes the HISA structure much closer to the SEC structure–which has been upheld as constitutional, including the way in which people are appointed to the private entity, FINRA, and in its investigatory authority–then it is more likely that the other challenges to HISA would not be accepted.

Although, let me clarify. There is a difference with the SEC's process for investigating alleged violations of its rules. The SEC has its own government employees doing the investigations and the initial determinations. Under the HISA statute, the initial investigations and determinations are not done by FTC government employees–they're done by employees of the private Authority. That is still a potential challenge which has been raised in some of the lawsuits around the country.

TDN: Do you think this action might have any influence on the FTC's pending decision on whether or not to approve HISA's ADMC rules?

LF: I don't think it will. I mean, as soon as Congress amended the statute, the FTC said, 'now we're going to go ahead with the rulemaking process on the medication rules.' That is a strong signal.

Right now, we have a situation where the groups that are opposed to HISA have been throwing every legal argument they can think of at the statute, hoping that something sticks. Well, something did stick with the Fifth Circuit and Congress responded to that. So now, all the groups that are opposed to HISA are going to try to argue back in the district courts that the congressional fix isn't enough, and to then throw other arguments against HISA.

There's a long litigation road ahead for the statute and the Authority. I think I'm going to start calling the HISA statute the 'full employment for the lawyers' statute. The real people benefiting are the lawyers getting all these cases.

TDN: Given the swirling legal uncertainty, if the FTC approves the ADMC rules and they go into effect, will the Authority be leaving itself open to strong legal challenges when the first medication violation adjudications come rolling in?

LF: Well, let me put it this way. Trainers that have been sanctioned under the old system of each state determining its rules and sanctions have shown a propensity for hiring as many lawyers as they can to appeal and try to get their penalties reduced or vacated. Why would that change just because the penalty is for a HISA rule as opposed to a state commission rule?

TDN: And running up against the federal government is a little different than running up against a state commission?

LF: Yes, and that may be one of the things that the various HBPAs are worried about.

TDN: The Texas Racing Commission stated that the recent Fifth Circuit Court of Appeals action means that HISA has no jurisdictional authority in the state, and therefore, they can beam their simulcasting signal out-of-state once more. The Sam Houston lawyers are more circumspect. Who's right?

LF: The Fifth Circuit did not issue an injunction against the statute and rules. It was just what's called a declaratory judgment. So, there is not currently any binding legal order that applies in Texas that prohibits HISA from acting.  The HISA statute applies to any entity that simulcasts into other states, so if any Texas track does start sending its signal to other states, it will be subject to HISA unless a court issues an injunction prohibiting HISA from acting.

But should HISA try to enforce any regulations in Texas, whoever was the target of any enforcement could sue to get an injunction saying, 'you can't enforce your rules if this circuit said you're unconstitutional.' So, in a roundabout way, the Texas Racing Commission is correct but–and this is a big but–only for the superseded version of HISA before the congressional amendments. If the courts rule that the congressional amendments fix the problem found by the Fifth Circuit then they would not enjoin HISA from acting in Texas. So I think the circumspection of the lawyers for Sam Houston is warranted.

Eventually, where is this all going in Texas or any other objecting state? It's becoming a game of whack-a-mole. The Fifth Circuit says this part of HISA is unconstitutional. Congress fixes it. Now, some other court says, 'another part of HISA is unconstitutional.' Well, Congress could then fix that. All of the challenges to HISA are delaying implementation, but ultimately, I do not think they will not stop the movement towards uniform national rules for the multi-state business of horse racing.

TDN: There's another case in the Northern District of Texas, Amarillo. Do you know what's happening with the case-and do you still think this could prove a major headache for HISA this year?

LF: There's been no further decisions in that court. That judge has to follow the Fifth Circuit decision on the challenge to the previous version of HISA about the allocation of responsibility between the FTC and the private Authority. Before that Judge, HISA and the FTC will argue that the newly amended statute satisfies the Fifth Circuit concerns, and that judge could allow the newly amended rules to go into effect. But as I said in our previous conversation, that case in Amarillo does have a lot of other challenges to HISA, such as to the way members of the Authority are appointed and the investigatory process and powers given to HISA.

If you file a case in the Amarillo branch of the Federal District Court for that part of Texas, you get Judge [Matthew] Kacsmaryk. He has quickly gained a reputation based on his rulings for being very hostile to broad federal regulation, and he has all kinds of hot button issues being brought to him, asking him to undo often decades of federal regulatory schemes. So, that's why I said it's the case that could become a major headache for HISA, because that case would get appealed to the Fifth Circuit which has already shown scepticism about the extent to which Congress delegates federal power to a private entity.

TDN: Where does this leave the pending ruling in the Sixth Circuit?

LF: The Sixth Circuit, because they haven't ruled yet, has more options before them based on the congressional amendment. The Sixth Circuit asked the lawyers to submit briefs addressing how the congressional amendment affected the appeal. The Sixth Circuit could say, 'well, the HISA statute has changed in significant ways. We want to let the district court start afresh and assess the parties' arguments based on the new statute.'

There really doesn't seem to be a lot of point for the Sixth Circuit to issue an opinion about whether they think a now superseded version of the statute is constitutional. So, I think it is likely that the Sixth Circuit will decide the appeal before them is moot and send it back to the district court, where the HISA and FTC lawyers will try to persuade the district court judge that the congressional amendments do solve all the constitutional concerns that the Fifth Circuit raised.

TDN: Do you think HISA is right to forge on with implementation of the full program (pending FTC approval), or do you think it would behoove them to put the breaks on while all the legal shenanigans play out?

LF: This is asking for my personal opinion–I'm trying to provide an impartial legal view. But I think that yes, the HISA Authority is pursuing the right course. Remember, several states have voluntarily agreed to follow their rules. So, for those states who've said, 'we participate in this, we want to follow your rules,' these rules need to be developed.

This is maybe getting a little too deep into the weeds, but the judge in Amarillo is famous for issuing nationwide injunctions. If the judge in Amarillo were to do that, then HISA would be legally prohibited from implementing its rules anywhere. But in the meantime, there isn't a national injunction, so, why wouldn't they continue knowing that there are a substantial number of states–including some of the most prestigious racetracks and racing circuits in the country–that want to follow their uniform rules?

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