Ben Mosier | Horse Racing Free Tips

Loehr, Richards To Head HIWU Investigations Unit

Edited Press Release

As part of its preparations for administration of the Horseracing Integrity and Safety Authority's (HISA) Anti-Doping and Medication Control (ADMC) Program, the Horseracing Integrity and Welfare Unit (HIWU) is building a robust investigations unit to administer this fundamental component of the Program.

The investigations unit will be led by Shawn Loehr and Naushaun “Shaun” Richards, who will be guided by their decades of law enforcement and investigative experiences to help ensure the success of Thoroughbred racing's first national, uniform ADMC program.

Richards joined HIWU after a decorated 23-year tenure with the Federal Bureau of Investigation (FBI). He was most recently a supervisory special agent in the FBI's Eurasian Organized Crime Task Force. Richards initiated and directed the highly publicized criminal investigation involving the widespread misbranding of drugs, doping of racehorses, and international money laundering that ultimately resulted in the indictments of more than 30 individuals, including trainers Jorge Navarro and Jason Servis.

In his role as HIWU's director of intelligence and strategy, Richards will focus on long-range investigations, which will rely heavily on real-time intelligence, strategy, sophisticated investigative techniques and data analysis to identify and prosecute potential significant violations of the ADMC Program. He will liaise with federal, state, and local law enforcement as it relates to possible criminal violations.

Loehr, HIWU's director of investigative operations, joined HIWU following a distinguished 27-year career in law enforcement in California. Loehr had most recently spent nearly four years as the chief of enforcement and licensing for the California Horse Racing Board, where he managed all investigations and licensing staff. Loehr also spent time as chief investigator for the Sacramento County Department of Human Assistance, district attorney investigator for Sacramento County, and a police officer in Redding, CA.

As director of investigative operations, Loehr will oversee the investigators stationed at tracks across the country. In states that have signed voluntary agreements with HIWU, existing state investigators may be utilized. In states that choose to opt out of signing a voluntary agreement, HIWU is contracting independent investigators to work at specific tracks under Loehr's leadership. Loehr is also responsible for developing standardized investigative protocols for Anti-Doping and Controlled Medication Rule Violations, as well as other related investigative procedures.

Loehr and Richards will be supported by a full-time data analyst/scientist and an investigative analyst, in addition to other investigative staff. Gunter Younger, a member of the HIWU Advisory Council and director of intelligence and investigations at the World Anti-Doping Agency, will also play an active role and support all HIWU investigations. Relevant intelligence will be shared with HISA's Racetrack Safety Program directors, and vice versa, as appropriate.

To enhance investigative efforts, HIWU will offer an anonymous whistleblower platform through which individuals can submit tips in English or Spanish concerning potential violations of the ADMC Program once the rules take effect. The system will accept submissions via email, phone, text message, and WhatsApp and be managed by Richards' team to ensure that all tips are triaged appropriately and handled confidentially. Examples of reportable violations of the ADMC Program include, but are not limited to, the administration or use of a prohibited substance or method, trafficking, tampering with a sample collection and complicity in committing an ADMC rule violation. HIWU will circulate the relevant contact information to submit tips once it is available.

Later this month, HIWU's investigations team will be attending the Organization of Racing Investigators Annual Training Conference in Tucson, Arizona, where they will present on their operations and how they plan to work with states to effectively administer the ADMC Program.

“HIWU understands that a strong investigations arm is essential for an ADMC program to be effective, and we could not be more excited to have Shawn and Shaun leading our efforts in this area,” said Ben Mosier, executive director of HIWU. “As a result of the work of our investigations team, stakeholders in the Thoroughbred industry can look forward to competing under a program that facilitates a level playing field while punishing those who don't comply with the rules and threaten the safety and welfare of our equine and human athletes.”

“I am honored to be able to use my experiences at the World Anti-Doping Agency to help contribute to the HIWU investigation team's success and promote the integrity of Thoroughbred racing,” said Younger. “We recognize the importance of whistleblowers in alerting us to potential violations, and industry members can feel confident that information can be safely shared with us through the secure platform.”

HIWU is anticipating that it will begin enforcement of the ADMC Program Mar. 27, 2023, pending approval of the ADMC rules submitted to the Federal Trade Commission in December and published to the Federal Register Jan. 26.

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FTC Delays Implementation of HISA’s Drug and Doping Program

In an order Monday, the Federal Trade Commission (FTC) announced that the Horseracing Integrity and Safety Act's (HISA) anti-doping and medication control (ADMC) program would not go into effect as scheduled Jan. 1 due to swirling legal uncertainty.

“The bedrock principle of the Act is the need for uniformity,” wrote the FTC in the order, adding that “the Commission's approval of the Anti-Doping and Medication Control proposed rule would not result in uniformity because the Horseracing Integrity and Safety Act has been held unconstitutional by a panel of the United States Court of Appeals for the Fifth Circuit.”

Oral arguments similarly surrounding HISA's facial constitutionality were held last week in a separate case before the Sixth Circuit Court of Appeals.

“The Commission therefore disapproves the proposed rule without prejudice. If the legal uncertainty regarding the Act's constitutionality comes to be resolved, the Authority may resubmit the proposed rule or a similar rule, and the Commission will consider all comments filed in this proceeding as well as any updated or new comments and filings.

“In the meanwhile, and until any future proposed rule on the subject is approved by the Commission, State law will continue to regulate the matters that the proposed rule would have covered,” the order states.

According to HISA's CEO Lisa Lazarus, who held an impromptu press conference Monday afternoon, this means that the current regulatory “status quo” will remain in place at the start of 2023.

“They made reference to the fact that, since the FTC has not approved any ADMC rules under HISA's authority, that means all the state rules remain in full force and effect,” said Lazarus, stressing that this was her “interpretation” of the FTC order.

“If there wasn't a clear statement on this issue quickly, then we might get to Jan. 1, and there might be some uncertainty around who actually has the authority. It's important for the states to know now that they're going to continue to be the ones in charge of testing on Jan. 1,” Lazarus added.

When it comes to the financial implications from Monday's announcement, HISA will refrain from collecting any of the 2023 fee assessments, designated for the individual states or, alternately, the racetracks, said Lazarus.

“The vast majority of those fees relate to the anti-doping program,” said Lazarus, explaining that the 2023 fees will be collected once the legal uncertainty has been resolved.

“There are still assessments being paid for 2022 that obviously are still required for the state racing associations who opted in, and the racetracks to cover, because those costs have already been incurred, or are in the process of being incurred,” she added.

Ben Mosier, executive director of the Horseracing Integrity & Welfare Unit (HIWU), the enforcement arm of HISA's ADMC program, released a statement explaining that HIWU will continue its education and outreach efforts “to all stakeholders in the Thoroughbred industry,” despite the delay in implementation.

“As HISA re-submits the draft ADMC rules for the FTC's approval, HIWU will use any additional time before implementation as an opportunity to ensure the industry is even more prepared for an efficient rollout of this Program, which will promote fair competition in the sport of Thoroughbred racing and the safety and welfare of our human and equine athletes,” wrote Mosier.

According to Lazarus, “So long as that preparatory work doesn't extend beyond two to three months, [HIWU's work] would still be covered by the 2022 budget.” However, “if it extends longer, we would have to revisit that issue.”

As for potential timelines moving forward, Lazarus explained that once the ADMC rules have been resubmitted with the FTC, it would take approximately 60 days for them to then go into effect, “assuming that the FTC was going to approve them substantively.”

Lazarus also broached a number of different scenarios in what appears to many in the industry a swirling morass of unpredictability and confusion.

Last month, the Fifth Circuit Court of Appeals found the law facially unconstitutional due to the lack of rule-making authority ceded to the FTC. That mandate is set to go into effect Jan. 10.

But if HISA is able to secure a stay on the Fifth Circuit's ruling in the interim, “we would then go back to the FTC [with the ADMC rules] and seek approval on that basis,” said Lazarus.

A similar case questioning HISA's constitutionality is also before the Sixth Circuit Court of Appeals. According to Lazarus, a ruling in the Sixth Circuit is expected “in the next month or two.”

If the Sixth Circuit issues a ruling favourable to HISA, “it would potentially give us the ability to continue with our program in those jurisdictions the Sixth Circuit covers,” said Lazarus.

“And it would also potentially lead to the [U.S.] Supreme Court hearing the case,” said added.

Nevertheless, even if the Sixth Circuit issues a friendly ruling on HISA, the FTC still might prove reluctant to allow HISA's ADMC to go into effect in those jurisdictions as the new law wouldn't be implemented uniformly, said Lazarus.

“For that reason, it's very possible the FTC would maintain the position that we shouldn't resubmit our rules until we have clear ability to move forward and launch across the whole country,” said Lazarus.

Another potential fix to the current knot of legal problems is a congressional re-write of the rules to cede more rule-making power to the FTC. Lazarus declined to speculate on the likelihood and possibility of that option.

A number of experts have questioned whether the legal uncertainty surrounding HISA's constitutionality puts into jeopardy the law's racetrack safety rules, already in effect. Lazarus said that Monday's order has no effect on the racetrack safety prong of the program.

“This related solely to the ADMC rules, and also, it was not a substantive review,” said Lazarus. “It was a statement on their perspective with regards to the legal uncertainties and ensuring there's clarity before we launch the new program.”

Ed Martin, the Association of Racing Commissioners International's (ARCI) president and CEO, referenced a letter the organization sent last week to the FTC highlighting “a real Catch-22” come Jan.1 concerning the legality of HISA's ADMC program.

“We are appreciative that the FTC listened and considered the request of the Association of Racing Commissioners International not to create regulatory uncertainty on Jan. 1 by approving the proposed HISA rules,” Martin told the TDN.

“Whoever got brought up on a charge could potentially have appealed it ad nauseam, and maybe win, which means there might be no rules in effect. That was the danger here,” Martin speculated. “They might be mad at me for bringing it up, but it needed to be brought up.”

The following is HISA's full statement in response to the FTC order:

“HISA appreciates the Federal Trade Commission's (FTC) decision to deny HISA's draft Anti-Doping and Medication Control (ADMC) rules without prejudice as we actively seek to resolve current legal uncertainties. HISA is eager to launch Thoroughbred racing's first and long-awaited national, uniform ADMC program and stands ready to do so. We will re-submit the draft ADMC rules to the FTC for their review as soon as these legal uncertainties are resolved, and once approved, we will implement the program through the Horseracing Integrity and Welfare Unit (HIWU). In the meantime, HIWU will continue to work toward the implementation of a uniform, independent anti-doping and medication control program that is administered consistently and fairly across the United States.”

In a statement, National HBPA CEO Eric Hamelback wrote, “The recent FTC decision is another positive step forward for horsemen in our battle against the unconstitutional takeover of our industry. The strength of our legal arguments led to a unanimous decision in the Fifth Circuit, and now the FTC has done the right thing in declining to defy a federal court that has found HISA unconstitutional. The FTC order is clear: state law continues to govern medication issues until our final victory in this case.”

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HIWU Appoints Three to Executive Team

The Horseracing Integrity & Welfare Unit (HIWU) announced three appointments to its executive leadership team-Ben Mosier to the role of Executive Director, Kate Mittelstadt to Chief of Operations, and Michelle Pujals to General Counsel. Both Mittelstadt and Pujals will report to Mosier.

The Horseracing Integrity and Safety Authority (HISA), in consultation with HIWU, is preparing to submit draft regulations for the Anti-Doping and Medication Control (ADMC) Program to the U.S. Federal Trade Commission for review ahead of implementation of the Program Jan. 1, 2023.

Mosier joined Drug Free Sport International (DFSI), the independent enforcement agency selected by HISA to operate HIWU and administer the ADMC Program, in 2010. He most recently served as Vice President of Business Development at DFSI and has overseen anti-doping programs for the National Basketball Association (NBA), the PGA Tour, Major League Baseball's Minor League Program, and NASCAR. Prior to joining DFSI, Mosier served as National Events Coordinator at the Kansas City Sports Commission.

Mittelstadt most recently served as Director of the IRONMAN Anti-Doping Program, which became the first program run by a private, non-federation sports organization that formally adhered to the World Anti-Doping Code. Mittelstadt's career in anti-doping began in 2000, when she became one of the first employees hired by the U.S. Anti-Doping Agency, and where she served for six years as Director of Doping Control. During that time, she was manager of Out-of-Competition Testing at the 2002 Winter Olympic Games in Salt Lake City. She has since served in various capacities with the World Anti-Doping Agency and the Association of National Anti-Doping Organizations.

Pujals, who served for over 20 years as a member of the NBA's legal department, most recently as Vice President & Assistant General Counsel. During her tenure, she oversaw the development and administration of anti-drug programs for NBA players, coaches, and trainers, and was a member of the NBA/NBPA Prohibited Substances Committee and the NBA Crisis Management Team. Pujals also oversaw the NBA's general litigation matters, internal arbitrations and investigations, and the development of the NBA Arena Security Standards. Prior to joining HIWU, she was the owner and principal of Tautemo Consulting, LLC, a legal and sports consulting firm.

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