Last week, trainers Wesley Ward and Larry Rivelli issued a letter through the National Horsemen's Benevolent and Protective Association (HBPA) critiquing various aspects of the national program for “too many flaws, missteps and costs that could have been averted with true inclusion and transparency in its development.”

Earlier this week, HISA CEO Lisa Lazarus conducted a zoom conference with Ward, along with attorney and former trainer Darrell Vienna, to grapple with the points raised in Ward's letter.

Issued Wednesday, Vienna released his own open letter to Lazarus, addressing six main points that he said were discussed during Monday's zoom conference.

The topics cover Vienna's thoughts on the financial assessments, the way in which therapeutic and illegal substances have been divided, the new system of detection times and screening limits vs. the old system of withdrawal guidelines and thresholds, HISA's environmental contamination policy, industry input into HISA's working framework, and the new whip rules.

Substantively speaking, Vienna's letter overlaps the contents of an open letter Charles Scheeler, the chair of the HISA board of directors, issued Tuesday addressing what he sees as “misinformation” about the law, in the process arguing that HISA's drug testing program protects “good-faith horsemen,” that HISA's rules “seek to protect” small racetracks and racing jurisdictions, and that HISA has “consistently sought feedback from horsemen” across the country. Read Scheeler's full letter here.

In his open letter, Vienna writes that there is “an apparent and obvious inequity” in the way HISA has calculated its fee assessments.

“For example,” writes Vienna, “Charles Town's annual purse money ($35,000,000) and Keeneland's annual purse money ($32,000,000) are similar; however, Keeneland's HISA Assessment is half of Charles Town's HISA assessment.”

Vienna also takes issue with HISA's environmental contamination protocols, which appear to include only a slim number of substances.

“The vast majority of prohibited substances are not subject to the Atypical Findings Policy. The Policy only applies to initial findings of HISA specified substances, endogenous substances, ractopamine, zilpaterol, and substances not listed on the Prohibited Substances list,” Vienna writes.

“Contrary to HISA's assertion of trainer friendliness, HISA's policy is among the most trainer unfriendly contamination policies in horseracing because it excludes a vast number of substances from the Atypical Findings Policy,” Vienna adds.

Ultimately, writes Vienna, “HISA rules have not been so tested and do not appear superior to ARCI model rules. Rather than rewriting the book, it may be better to see those model rules adopted and enforced uniformly throughout racing jurisdictions. If there was a concerted effort toward that goal, I believe that uniform racing and medication rules would already be the law of the land.”

Read Vienna's full letter here.

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The Horseracing Integrity and Safety Authority, or HISA, was created by Congress in 2020 to implement, for the first time, uniform nationwide safety and integrity rules to govern Thoroughbred racing in America. It represents a once-in-a-lifetime opportunity to reform a sport that in recent years has seen criminal conduct at its highest levels and welfare concerns about horse and rider safety that have raised questions about its viability.

Some horsemen have recently expressed a desire to scrap the substantial progress made over the last two years and start from scratch on safety and integrity reform. But after failing for decades to create uniform standards, we've finally made real progress and have momentum. In fact, early indications suggest that racing is already getting safer for horses. Starting over would be to risk losing all of that.

Unfortunately, there has been a great deal of misinformation being shared about HISA's rules, including in a recent letter issued by the Horsemen's Benevolent and Protective Association (HBPA). As Chair of HISA's Board of Directors, and someone who has previously been involved in transformational reform efforts in other sports, I'm pleased to have this opportunity to set the record straight.

HISA's drug testing program will protect good-faith horsemen.

HISA's draft Anti-Doping and Medication Control (ADMC) rules do exactly what the HBPA's letter claims horsemen want them to do: establish entirely separate categories for permitted substances (i.e. Controlled Medications) that are allowed outside of the racing period and doping substances (i.e. Banned Substances) that should never be in a horse. The rationale is to severely penalize those who use Banned Substances, while being sensible and proportionate when it comes to accidental medication overages–and to prioritize clear, transparent, and fair due processes in either case. HISA also provides those charged with a chance to tell their side of the story via hearings and multiple appeal rights. The HISA policy is built to catch cheaters, not to victimize good-faith horsemen.

Additionally, for the first time ever, labs across the country will be testing for the exact same substances at the exact same levels. HISA's testing program will only report positives that have the potential to impact the horse's system. Rumors that insignificant picograms or environmental contaminants will always result in a positive test under HISA's rules are entirely untrue.

The type of drug abuse we are trying to eliminate was on full display when more than two dozen arrests were made in 2020. It took outside investigators and the FBI to catch those cheaters because racing's outdated state-by-state system was unable to do so. HISA will change this.

HISA's rules specifically seek to protect small racetracks and racing jurisdictions.

The HBPA's letter erroneously implies that costs associated with HISA could lead to the demise of small racetracks. On the contrary, HISA's rules specifically take small racetracks' challenges into account by requiring those with higher purses to contribute more financially than those with lower purses.

HISA has consistently sought feedback from horsemen across the country and continues to do so.

All horsemen's groups–including the HBPA–received drafts of all proposed rules and had the opportunity to comment on them before they were submitted to the Federal Trade Commission. In fact, horsemen's groups did submit feedback, much of which was then incorporated into the draft rules. HISA continues to seek feedback–formally and informally, including via our Horsemen's Advisory Group, made up of trainers, owners, veterinarians and farriers from across the country.

Where issues around HISA's rules have arisen, we have consistently engaged with racing participants to remedy them. HISA's shoeing rule changed this past summer based on industry feedback, and we are currently working closely with the Jockey's Guild on possible revisions to HISA's crop rule.

Getting a federal law passed was a monumental accomplishment, and the progress and momentum since then has been astounding. Thoroughbred racing must take advantage of this moment. Change can be uncomfortable and often comes with growing pains, but the future of the sport depends on its evolution. Let's find the courage to do this together.

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In short, the draft omnibus spending bill cedes the FTC–the governmental agency which ultimately signs off on any new HISA rule–new autonomy to remove, add to and tweak language in the rules constructed by the Horseracing Integrity and Safety Authority, the private entity given broad umbrella power over implementing the act. Previously, the FTC could only accept or reject a proposed rule.

The FTC may now “abrogate, add to, and modify the rules of the Authority promulgated in accordance with this Act as the Commission finds necessary or appropriate to ensure the fair administration of the Authority, to conform the rules of the Authority to requirements of this Act and applicable rules approved by the Commission, or otherwise in furtherance of the purposes of this Act,” the language states.

The news was first reported by the Paulick Report. Lawmakers have until Friday to pass the spending bill before the make-up of Congress changes shape next year.

After this draft language was released, The National Horsemen's Benevolent and Protective Association (HBPA) CEO Eric Hamelback and General Counsel Peter Ecabert released a joint statement, taking aim at legislation they say was “crafted in the dark of night with no public hearings and virtually no industry input.”

“This amendment does not address other substantive issues, nor does it address the funding disaster that remains in the flawed Act. It is clear from the issues raised in the various lawsuits contesting the legal validity of HISA that this one-sentence 'fix' does not alleviate the glaring constitutional infirmities this law has created.

“The constitutional defects still include a non-federal private entity granted the power to levy taxes in violation of Article I, Tenth Amendment violations for anti-commandeering of states powers, Fourth and Seventh Amendment violations for lack of due process, and violations of the Administrative Procedures Act,” wrote Hamelback and Ecabert.

Hamelback and Ecabert added that, “For all the reasons we state above, the Act itself remains unconstitutional by handing the regulation of an entire industry over to an unelected, unaccountable private corporation. This fight is not over, and the National HBPA will go all the way to the Supreme Court if we have to, in order to protect the interests of horsemen across the country.”

In a rare move for the chair of the HISA board of directors, Charles Scheeler issued his own statement Tuesday, addressing what he sees as “misinformation” about the law, in the process arguing that HISA's drug testing program protects “good-faith horsemen,” that HISA's rules “seek to protect” small racetracks and racing jurisdictions, and that HISA has “consistently sought feedback from horsemen” across the country.

“Some horsemen have recently expressed a desire to scrap the substantial progress made over the last two years and start from scratch on safety and integrity reform. But after failing for decades to create uniform standards, we've finally made real progress and have momentum. In fact, early indications suggest that racing is already getting safer for horses. Starting over would be to risk losing all of that,” wrote Scheeler.

“Getting a federal law passed was a monumental accomplishment, and the progress and momentum since then has been astounding. Thoroughbred racing must take advantage of this moment. Change can be uncomfortable and often comes with growing pains, but the future of the sport depends on its evolution. Let's find the courage to do this together,” Scheeler added.

The year-end omnibus spending bill left the Senate and House Appropriations Committees Tuesday morning, and must now be finalized before this Friday, to avert a governmental shut-down.

During that process, the amendment to HISA could still be removed, though sources say that is extremely unlikely. If this language remains in the bill, however, there are a few different scenarios at play.

Last week, FTC announced that it had disapproved “without prejudice” the program's anti-doping and medication control (ADMC) rules.

But with this new language, HISA could resubmit the ADMC rules with the FTC. It would then take approximately 60 days for these rules to go into effect, “assuming that the FTC was going to approve them substantively,” HISA CEO Lisa Lazarus previously explained.

There remains a ruling pending in the Sixth Circuit Court of Appeals concerning similar constitutional questions to the Fifth Circuit. It is currently unclear when that ruling will land.

But the current language in the omnibus spending bill would essentially render the current cases before the Fifth and Sixth Circuits legally moot in a practical sense, and would make the possibility of the Supreme Court taking them up altogether highly unlikely.

Even then, don't expect the legal fireworks to end, with a case in the U.S. District Court of Texas-Northern District, Amarillo Division-a potentially nasty looking legal blackthorn for the law.

Constitutional law expert Lucinda Finley recently told the TDN that the case raises several additional constitutional arguments that the Fifth and Sixth Circuits did not rule on, including HISA's investigative, subpoena and punishment power as a private body, and the way in which individuals on the HISA board are appointed.

“It argues that the whole structure is a delegation of not only too much executive authority, but can amount to a delegation of legislative and judicial authority as well,” Finley explained.

If the judge in the case agrees that HISA indeed delegates too much power to a private entity, the plaintiffs in the case are seeking an injunction to suspend enforcement of the law.

Would such an injunction apply nationwide or just in Texas?

“You've actually asked what is one of the most raging controversies in U.S. law,” Finley replied, leaving the answer open-ended.

The state of West Virginia is a plaintiff in two lawsuits against HISA that allege unconstitutionality. During a Tuesday morning meeting, the West Virginia Racing Commission (WVRC) discussed the ramifications of the pro-HISA language being added to the federal omnibus spending bill.

“This amendment appears to try to flip the rulemaking authority back to the FTC in a way that HISA can make suggested rules to the FTC, [which would] have the ultimate authority as to whether or not to approve them,” said WVRC commissioner J.B. Akers, who is an attorney.

“On its face, [this] could potentially resolve the constitutional issues, some or all, that were present in the Fifth Circuit case,” Akers said. “What's clear here is that someone has influenced the staffers or politicians who were responsible for writing this 4,000-plus page legislation to put a couple of paragraphs [in the bill] where they're now attempting to 'fix' the Fifth Circuit constitutional analysis so that the FTC has its mandated authority back. Whether or not that would satisfy those constitutional concerns,” Akers added, is unclear.

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Oral arguments are set for Dec. 7 in the Sixth Circuit Court of Appeals for an appeal of an earlier ruling in U.S. District Court for the Eastern District of Kentucky.

That district court found that HISA was indeed constitutional, and that the Federal Trade Commission (FTC)—the governmental agency charged with ultimately signing off on the law's rules—wields adequate authority over the private entity charged with implementing the law.

If the Sixth Circuit reverses that district court ruling, it would mirror a decision delivered in the United States Court of Appeals for the Fifth Circuit last week, which ruled HISA unconstitutional because it cedes too much governmental authority to a private entity, and too little rule-making input to the FTC.

An overview of the various legal implications from the Fifth Circuit ruling can be read here.

The three-person panel hearing the case in the Sixth Circuit includes in judges Jeffrey Sutton and Richard Griffin “two of the most conservative judges” on the entire circuit court, said Finley—individuals who could perhaps be expected to take a more “skeptical” attitude towards the constitutionality of the law in its current form, she added.

More pointedly, Chief Judge Sutton is an expert on state constitutions, explained Finley. “Given his strong commitment to letting states handle matters themselves, I would not expect him to come at this new federal regulatory scheme openly sympathetic.”

Judge Ransey Guy Cole, the third judge on the panel, is an appointee from the Clinton administration considered moderate to liberal, explained Finley, and could therefore prove more amenable to the arguments from HISA's attorneys.

“This 2-1 slant of extremely conservative judges—and the conservative position these days seems to be against broad federal regulatory schemes—does not bode well for the fate of HISA before the Sixth Circuit,” said Finley.

Finley explained that it was difficult to prognosticate when a ruling on the case—which was brought by various entities such as the States of Oklahoma, West Virginia, and those states' racing commissions—will be issued.

If the panel of judges fails to rule unanimously, “that always takes longer for the decision to come out,” warned Finley.

That said, “The lawyers might say, as part of their oral argument, that this has caused great uncertainty and tumult, and it would be good to have a decision as soon as possible,” said Finley. “But it also depends on something none of us can know, which is for each of the judges on this particular panel, what other cases in the pipeline are they still working on?”

The messy regulatory roadmap for the start of next year, when HISA's Anti-Doping and Medication Control program is scheduled to go into effect, is already looking fraught with potential hazards, especially for trainers and other industry stakeholders with operations in multiple states.

If HISA fails to get a stay granted on the Fifth Circuit decision—something several legal eagles think is a likely scenario—then the ruling goes into effect on Jan. 10, and will apply to those states under the circuit court's decision, namely Texas, Louisiana and Mississippi, said Finley.

Since Friday's Fifth Circuit decision came out, the same circuit court has also lifted an “administrative stay” on a HISA-related ruling allowing an injunction against the plaintiffs to go into effect. As Finley explains, the injunction essentially prevents HISA from “enforcing its rules” in Louisiana and West Virginia.

Other states beyond the Fifth and Sixth Circuits, therefore, must weigh the decision whether or not to continue abiding by HISA's rules against a backdrop of legal uncertainty surrounding the law's constitutionality.

On Monday, Ed Martin, president of the Association of Racing Commissioners International (ARCI) said that some states, like California, will honor a written agreement they have executed with HISA to enforce its racetrack safety rules.

“Other States, upon the advice of counsel or Attorney General, will revert to state rules that remain on the books, not wanting to jeopardize the outcome of a court challenge to any enforcement action,” Martin added.

A reversal in the Sixth Circuit of the earlier district court decision would only muddy the waters even more. At the same time, said Finley, consistent rulings between the Fifth and Sixth Circuits would make it “significantly less likely” the Supreme Court would eventually take up the case—what is one of the potential legal options open to HISA.

“But I think if the Sixth Circuit disagrees with the Fifth Circuit, then I think it makes it significantly more likely that the Supreme Court takes the case,” said Finley.

The TDN repeatedly pressed HISA for comment on a series of questions about the pathway forward. HISA responded with a statement by Charles Scheeler, chair of HISA's board of directors, which was first issued last week:

“While HISA is disappointed by the Fifth Circuit's decision, we remain confident in HISA's constitutionality and will be seeking further review of this case. If today's ruling were to stand, it would not go into effect until January 10, 2023 at the earliest. We are focused on continuing our critical work to protect the safety and integrity of Thoroughbred racing, including the launch of HISA's Anti-Doping and Medication Control Program on January 1, 2023.”

Finley also emphasized a previously made comment—that arguably the “most successful” route for HISA to legally undergird the act could be to seek a congressional re-write of the rules to cede greater rule-making authority to the FTC.

When asked if greater FTC oversight of the rule-making process would satisfy the Horsemen's Benevolent and Protective Association (HBPA)—the national organization that has spearheaded the legal push against HISA—the organization's general counsel, Peter Ecabert, demurred, citing other problems with the act as written, such as a lack of transparency in meetings unavailable to the public and in the budgetary process.

“One of the things that Congress could do that would be a blessing for the industry would be to fund this,” Ecabert said.

“We all want uniformity,” he added. “But do this in the brightness of the light and not behind closed doors.”

Far from uniformity, however, come the start of 2023 the regulatory playing field could be as fractured, puzzling and complicated as it has ever been for industry participants.

When asked what he would tell the likes of Steve Asmussen and Todd Pletcher—trainers with large sprawling multi-state barns—about operating in this highly confusing environment, Ecabert recommended reaching out to individual state racing commissions.

“Hopefully the racing commissions will give some guidance, or the attorney general for the jurisdiction will say how they're going to treat HISA,” Ecabert said. “It's now a state-specific issue until HISA's ruled to be unconstitutional and unenforceable nationwide.”

Ecabert also pointed to legislation introduced into the U.S. House of Representatives in October of last year seeking to delay the full implementation of HISA until the start of 2024.

HBPA CEO, Eric Hamelback, wrote in a text that the bill currently only has 3 co-sponsors, but that there has been verbal support for the bill among other congressional members, and he expects support to build for it in after Friday's Fifth Circuit decision.

Another plan still in its infancy, Ecabert added, is to introduce into congress a separate and national “medication compact” similar in its framing to the now defunct National Uniform Medication Program (NUMP), but which would mandate “uniformity among the states.”

NUMP ultimately failed, Ecabert conceded. “But we're in a different atmosphere today than we were years ago,” he added. “People now, trainers and owners, have seen how disruptive HISA has been and they're more likely to jump on board.”

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“We are thrilled to have Lisa on board as we approach HISA's program effective date in six short months” said Charles Scheeler, Chairman of the Board of Directors. “Her deep background in sports business and law will be on full display as she leads the racing industry into a new, safer era of clean competition under uniform rules and regulations.”

“I look forward to working with the impressive and diverse array of independent and industry experts at HISA to make racing safer and fairer for all. As someone who has worked with the industry over the course of my career, and as a horse lover, I'm honored to be taking on this role,” said Lazarus.

Lazarus established and leads the Equestrian Practice at Morgan Sports Law, where she provides counsel on health and safety issues and rule compliance in addition to representing athletes, owners and trainers in disputes before national and international governing bodies. Prior to joining Morgan Sports Law, she served as General Counsel and later Chief of Business Development & Strategy at the Fédération Equestre Internationale, the international governing body for equestrian sports. Prior to her focus on the equine sporting industry, Lazarus spent a decade at the National Football League where she served as the league's Labor Relations Counsel, representing the NFL's 32-member clubs in collective bargaining issues and in contested arbitrations, including anti-doping enforcement matters. She then became Senior Legal Counsel before taking the role of Senior Director of Partner Development for NFL International at their headquarters in London, England. Lazarus began her legal career working as an associate at Akin Gump for four years after graduating from Fordham University School of Law and clerking for a Federal District Court Judge in Memphis, Tenn.

Under the leadership of Interim Chief Executive Officer Hank Zeitlin, the Authority's advisory committees drafted proposed rules and regulations and sought industry feedback through an extensive stakeholder engagement process, resulting in the successful submission of the Racetrack Safety Program to the Federal Trade Commission on Dec. 6. The ADMC Committee worked with USADA to release six documents for public input, including the proposed Equine Protocol, Prohibited List, Definitions, Equine Arbitration Procedures, Testing and Investigation Standards, and Standards for Laboratories and Accreditation.

“The significant progress achieved in just a short period of time is a testament to Hank's professionalism and intimate knowledge of the racing industry. He convened a small yet highly capable staff to undertake this enormous effort with the advisory committees, and the work products speak for themselves,” said Scheeler. “The Board of Directors deeply appreciate Hank's leadership and service to the racing community.”

“Being a part of the process to improve and modernize the sport has been a privilege,” said Zeitlin. “I look forward to working with Lisa in the coming months as my time at HISA comes to a close. There is no doubt in my mind that the Authority is in good hands as it continues its mission to protect the athletes, both equine and human, and the integrity of the sport.”

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Lazarus established and leads the Equestrian Practice at Morgan Sports Law, where she provides counsel on health and safety issues and rule compliance in addition to representing athletes, owners and trainers in disputes before national and international governing bodies. Prior to joining Morgan Sports Law, she served as General Counsel and later Chief of Business Development & Strategy at the Federation Equestre Internationale, the international governing body for equestrian sports. Prior to her focus on the equine sporting industry, Lazarus spent a decade at the National Football League where she served as the league's Labor Relations Counsel, representing the NFL's 32-member clubs in collective bargaining issues and in contested arbitrations, including anti-doping enforcement matters. She then became Senior Legal Counsel before taking the role of Senior Director of Partner Development for NFL International at their headquarters in London, England. Lazarus began her legal career working as an associate at Akin Gump for four years after graduating from Fordham University School of Law and clerking for a Federal District Court Judge in Memphis, TN.

“We are thrilled to have Lisa on board as we approach HISA's program effective date in six short months” said Charles Scheeler, Chairman of the Board of Directors. “Her deep background in sports business and law will be on full display as she leads the racing industry into a new, safer era of clean competition under uniform rules and regulations.”

Added Lazarus: “I look forward to working with the impressive and diverse array of independent and industry experts at HISA to make racing safer and fairer for all. As someone who has worked with the industry over the course of my career, and as a horse lover, I'm honored to be taking on this role.”

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With USADA's announcement, HISA is in shambles and picking up the pieces will be a daunting, if not impossible, task. USADA's involvement was the reason so many people were so enthusiastic about HISA's passage. USADA and its CEO Travis Tygart are the gold standard when it comes to anti-doping and they get results. Just ask Lance Armstrong. While it's true that HISA covers other areas and issues, none seem that important at the moment. This was always about bringing in USADA and letting them accomplish what the sport is incapable of doing on its own.

Now what?

The Horseracing Integrity and Safety Authority, the group overseeing the implementation of HISA, said, in a press release last week, that it is evaluating options for engagement with other leading independent enforcement agencies. I suppose that's what they had to say, but the statement does not address the realities of the predicament they are in. The statement indicates they will simply move on to Plan B. Except there is no Plan B, no alternative to USADA. And if they somehow do come up with another agency to handle drug testing and enforcement, it's not going to be an entity that has anywhere near the bona fides that USADA does.

There's only one way to solve this mess, and that's a reconciliation between USADA and the Authority.

In their respective press releases, neither USDA nor the Authority gave any indication as to what exactly was the problem that caused a divorce before the two were officially married.

“After months of negotiations, we have been unable to enter an agreement in line with the requirements of the Act, and one which would have given us a reasonable chance to put in place a credible and effective program,” Tygart said in USADA's statement, not exactly answering any of the questions so many now have.

The most likely reasons USADA and the Authority could not come to terms?

It could be about money. It was never going to be cheap to have USADA come in and provide the manpower and expertise needed to police an entire sport, one that has far more competitors and moving parts than even the Olympics. And it was never made clear where the money to pay for USADA was supposed to come from. Tygart might have asked for more than the Authority was willing to pay.

There may have also been a disagreement regarding rules and regulations, what USADA could and could not do. It's easy to see Tygart walking away if there were roadblocks put in his way that he could not accept.

Or it could be something else.

Whatever the reason may have been, Authority Chairman Charles Scheeler and his crew and Tygart and his team need to lock themselves in a room with the understanding that no one can come out until they have reached an agreement that will bring USADA back into the fold. That may mean that it will be the Authority that has to blink first, that it will have to find a way to give Taggart whatever it is that he is looking for. Horse racing needs USADA a lot more than USADA needs racing.

Maybe the relationship between the two is beyond repair and nothing can be done to salvage it, but racing has to try. The alternative is that everything goes back to the status quo and that, without USADA, the bad guys continue to run amok. HISA, without USADA's involvement, becomes so irrelevant that the act might as well be repealed. That depressing possibility should be considered unacceptable by the Authority, The Jockey Club and everyone else who has been trying so hard to bring meaningful change to a sport that needs just that.

There has to be a way. Make it happen.

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The draft Racetrack Safety regulations that were submitted to the FTC earlier this month will be implemented as scheduled by the FTC on July 1, 2022, following review, public comment and education periods. There will be a temporary delay in submission of the Anti-Doping and Medication Control draft rules to the FTC until a new independent agency can be identified and an agreement finalized. This will allow HISA and another independent enforcement agency to reach an agreement and build on the progress that has been made to-date with USADA. HISA anticipates this process will permit the full implementation of the final ADMC rules in early 2023.

“We are deeply grateful for USADA's hard work, expertise and leadership in working with HISA's Anti-Doping and Medication Committee to develop comprehensive draft rules in a remarkably short period of time,” said HISA Board Chair Charles Scheeler. “HISA will continue our search for an independent enforcement agency to oversee the Medication Control protocols. The Authority will also work with the FTC to ensure the Racetrack Safety Program advances on schedule. When operational, the program will provide critical enhancements to protect the health and safety of equine and human athletes.”

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Here are some takeaways from the day's presentations and discussions, which included four segments focused on HISA, a keynote address from new National Thoroughbred Racing Associations president and CEO Tom Rooney, and a high-powered panel featuring the top executives of four major racetrack organizations: 1/ST Racing (The Stronach Group), Del Mar, Keeneland and the New York Racing Association.

HISA Drug Testing Will Be Phased In

Charles Scheeler, the chairman of HISA, outlined the progress the organization has made during a very compressed timeline from passage of the legislation in December 2020 until its mandated launch July 1. A board of directors and chairman was named in May 2021, interim staff including a CEO was hired in July, when meetings and collaboration with the presumed enforcement arm, the U.S. Anti-Doping Agency (USADA), began. In September, stakeholder talks started, along with meetings with current state regulators. HISA presented its draft of proposed safety regulations to the FTC on the eve of the Symposium. It requested and received a waiver from the FTC to delay submission of proposed anti-doping and medication policies for at least 10 days (until Dec. 16). Draft anti-doping/medication regulations shared with industry organizations were met with considerable feedback. The FTC will conduct public register review in January and February and the rules must be approved by March 1 – four months in advance of HISA's launch.

Scheeler said the final regulations approved “will not be perfect” or “written in stone.”

When HISA does begin operations on July 1, it will only conduct out-of-competition testing, leaving post-race testing and adjudication of any violations from those tests in the hands of the state racing commissions for the rest of the year. Scheeler said HISA would take over post-race testing on Jan. 1, 2023. HISA would adjudicate any violations detected from out-of-competition tests.

Scheeler said HISA also hopes to work with racing commissions when it begins post-race testing to use existing personnel for race-day blood and urine collections, adding that if something isn't broken HISA is not interested in fixing it.

Technology And Big Data Will Be Critical

Scheeler and Dr. Susan Stover, a HISA board member and chair of the Racetrack Safety Committee, spoke about the importance of technology and data to HISA's success. The “transformational database” referred to by Scheeler would include information on both covered persons and covered horses and provide trainers and owners an interface to report whenever a horse's location changes, an important component for out-of-competition testing.

Stover, whose breakthrough research at the University of California-Davis has led to greater understanding of injury prevention, said the opportunity to collect comprehensive data is extremely important for racing to reduce the rate of fatal or serious injuries and for the sport to maintain what she called its Social License to Operate (SLO) with the public.

Stover pointed out that the United States has in recent years reduced its rate of fatal injuries per thousand starts by 40% but still has a rate higher than in the United Kingdom, Australia/New Zealand and Hong Kong. “We have work to do,” she said.

Dr. Sue Stover (right) and Ann McGovern

Fatalities aren't the only concern to Stover, who said 3% of horses at the tracks are taken out of training each month, an attrition rate she estimated costs nearly $82 million to horse owners every month.

Some form of pre-existing condition was detected in almost 90% of fatally injured horses she has examined over the years, Stover said. Factors that led to increased risk included corticosteroid injections, recent lameness and abnormalities in pre-race exams. Stover said data collected on training intensity (speed works at longer distances) may help HISA develop best training practices, especially for horses coming off layoffs.

Racetrack accreditations by HISA will be phased in, with tracks currently accredited by the NTRA getting an interim three-year accreditation with HISA, provided they make good faith efforts in certain areas and adhere to data reporting requirements.

Ann McGovern, a racetrack safety committee member, said in response to a question from the audience that tracks that fail to be accredited will lose their ability to conduct interstate wagering.

HISA/USADA Price Tag Remains a Mystery

Scheeler said HISA was not yet in position to submit a budget for HISA operations, in part because it does not have a contract with USADA. Costs, he said, would also depend in part on how things are worked out with state racing commissions. “It will cost money,” Scheeler said, “but this is an investment.” He compared the industry's failure to advance safety and anti-doping programs to bridges and roads crumbling because of the lack of infrastructure investment. Some of that investment will be in what Scheeler described as a “powerful and rigorous investigation program” similar to the 5Stones Investigations unit hired by The Jockey Club that investigated many of the trainers, veterinarians and drug suppliers who were indicted on federal charges in March 2020.

In a separate panel, Ed Martin, president of the Association of Racing Commissioners International, said language in the bill that created HISA was flawed because it does not require state racing commissioners to help with funding. “They made a mistake with this bill,” said Martin. “They allowed the states to walk away.” Martin suggested that state budget directors will withdraw funding for horse racing regulations and drug testing once they find out they aren't required to help fund HISA.

Therapeutic Medication List Still Being Developed

A group that included Adolpho Birch, HISA board member and chair of the Anti-Doping and Medication Control Committee, reviewed how medication violations will be adjudicated, separating primary (most serious) and secondary (therapeutic) drug positives.

Jeff Cook, general counsel for USADA, said a goal will be to adjudicate cases more quickly: four weeks when doping violations for secondary medications are challenged and eight weeks for primary drugs. A national stewards panel will adjudicate the secondary cases with an arbitrator used for the more serious violations. Cases can also be appealed to an FTC administrative law judge.

Two notable changes from the current process are that split samples would not go to a lab of the trainer's choosing and public disclosure of complaints may come as soon as the trainer is notified.

Birch, general counsel for the Tennessee Titans, served previously as the NFL's top anti-doping officials and helped draft the league's drug policies. Birch said the NFL was struggling with controlling the widespread use of performance-enhancing drugs, with some players dying from drugs and others feeling the need to cheat to compete. “If we didn't change,” he said, “the sport was going to suffer irreparably.”

Dr. Tessa Muir, USADA's director of equine science, said the HISA Anti-Doping and Medication Control Committee is still in the process of drafting a therapeutic medication list and screening limits for those drugs.

Mr. Rooney Goes Back To Washington

In his keynote address – his first as NTRA president and CEO – former Florida Congressman Tom Rooney said his mission will be to represent the horse industry in Washington, D.C., where he served five terms in the House of Representatives, from 2009-'19.

Rooney succeeds Alex Waldrop, who served as NTRA chief executive for 15 years. Waldrop was honored on Tuesday by the Race Track Industry Program with the Clay Puett Award for outstanding contributions to the industry.

From a family that owns the NFL's Pittsburgh Steelers and has been involved in Thoroughbred, Standardbred and Greyhound racing, Rooney brings a solid resume to the position. As a former member of Congress, he understands how important it is to have an industry representative in the nation's capital.

That's never more important than today, he said, referencing high profile events like the sudden death of Medina Spirit, the first-place finisher in the Kentucky Derby, and the fact that “our opponents have not gone away and they never, ever will go away.”

Incoming NTRA president and CEO Tom Rooney

Rooney's family owns the Palm Beach Kennel Club in Florida, where Greyhound racing was recently eliminated in a state-wide vote.

Rooney said he will work to support a smooth transition to HISA, help racing benefit from sports betting and maintain favorable tax benefits for horse owners.

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Nevertheless, overall specifics were pretty light on the ground–frustratingly so, for many–with an overarching message that the various medication and safety programs are very much a work in progress.

Looming over proceedings was yesterday's news that Kentucky Derby winner, Medina Spirit (Protonico), suffered an apparent sudden cardiac death after a scheduled workout at Santa Anita.

Indeed, Charles Scheeler, chairman of the Horseracing Integrity and Safety Authority–the broad non-profit umbrella established by HISA and commonly referred to as just the “Authority”–kicked the presentations off by warning that the sport is viewed by many to be in an “existential crisis.”

Highlighting how the U.S. has the worst catastrophic musculoskeletal injury rate among five major global racing jurisdictions–comprising the UK, Hong Kong, Australia/New Zealand and Canada–Scheeler called this a key metric for HISA.

“We have to understand that we've deferred maintenance here,” Scheeler said, of the industry's broad approach to equine health and safety.
Arguably the most salient tidbit Scheeler shared–at least in regards to a practical implementation of HISA—was that individual states will continue to conduct race-day testing and sample collection, if indeed HISA goes into effect on July 1 next year. Initially, the United States Anti-Doping and Agency (USADA) will manage the out-of-competition testing program, according to Scheeler.

However, when the 2023 season rolls around, USADA will then assume responsibility for both race-day testing and the out-of-competition testing program.

Scheeler explained that this staggered implementation allows for a number of key adjustments (which were laid out in a subsequent press release and posted again here):

• A less disruptive transition to race-day testing from the middle of the racing season to the beginning of a new season
• State Racing Commissions to synchronize budget cycles more easily
• Laboratories more time to adapt to new standard
• Greater opportunities for additional education on the new procedures and protocols for covered persons
• More thorough testing and implementation of needed new technology solutions

And who adjudicates any medication violations during this time? Because of staggered implementation, individual states will continue to adjudicate the post-race samples they're charged with collecting, Scheeler explained.

If USADA encounters a violation of the out-of-competition testing program, “they will prosecute that according to the rules they have promulgated,” Scheeler said.

Scheeler also used his presentation to emphasize some of HISA's main selling points, such as a centralized database which identifies trends to reduce fatalities and catch cheats, as well as a “powerful, rigorous investigations program.”

And what about cost? Here, Scheeler didn't have an answer, explaining that the Authority was still working on that, though emphasizing an oft-repeated expectation that HISA will eventually produce economies of scale.

HISA Anti-Doping and Medication Control Committee

While this constituted the third HISA-related panel of the morning, it had arguably the most practical relevance for the industry, comprising, as it did, information on the everyday drug-testing and enforcement program proposed under HISA.

The panel was led by Jim Gates, director of the Anti-Doping and Medication Control standing committee. Adolpho Birch, committee chair, Scott Stanley, another committee member, along with USADA's Tessa Muir and Jeff Cook, all joined via Zoom.

The bulk of the first half of the presentation constituted a rundown of information that has been made public for a while, including the proposed results management process and an overview of the possible sanctions. Arguably the most salient information came via the public question period, towards the end, even though much sought after specifics were generally left dangling.

Under the new rules, a positive finding might not necessarily be publicly disclosed after the relevant parties have been notified, but when the violation has been confirmed via a B sample analysis. The panelists explained that the trainer and/or the agency have the discretion to disclose the finding before confirmation B sample analysis–especially in circumstances like an upcoming big race–but that the idea is to protect undue reputational damage.

Another key new ingredient to the way medication violations will be handled is the possibility of a sanction for a horse who tests positive–a seismic shift away from the current system.

Under the proposed guidelines, a horse will be automatically disqualified in the event of a race-day violation. But a horse also faces the possibility of a maximum 14-month sanction, depending on the substance and what is described as the “method.”

When asked about the philosophy behind these kinds of sanctions, Gates explained that “in most cases, when a horse is suspended, it is to give time for any medication to clear their system so that they would not have a competitive advantage going forward.”

It should also be noted that a horse can also face a sanction in the event of whereabouts violation. This is the intended system that horses can be tested anywhere and at any time with no advance notice from the moment they fall under the purview of the program until the moment they are permanently retired from racing.

A horse falls under HISA's auspices at one of four moments: the date of their first timed and reported workout at a track, the date of their first timed and reported workout at a training facility, the date of their first race entry, or the date of their first nomination to a race.

Under the new rules, a whereabouts violation could lead to a 12-month sanction for the respective horse. Just don't expect to see this whereabouts program go into effect immediately, with USADA warning that the practical working logistics need to be hashed out and phased in.

Another key bone of contention among industry stakeholders has been the lack, thus far, of a publicly available therapeutic substance list–in other words, those medications that would largely fall under the “secondary substances” umbrella.

Muir explained that the list is still being worked out. She added, however, that it will use a hybrid model of thresholds and screening limits. Read here for a more detailed explainer of what that difference means. Screening limits, Muir said, will be especially applicable for those substances commonly found in a horse's environment, and therefore a genuine threat of inadvertent contamination.

The panelists also explained that the committee was using as a key reference point the International Federation of Horseracing Authorities' (IFHA) thresholds for therapeutic substances. The IFHA's screening limits for urine can be found here. For blood, it's here.

In other talking points, the panelists explained the reasons behind deviating from the current multiple medication penalty system towards a much more punitive one. The change “allows for more stringent sanctions for those who commit more egregious violations or more frequent violations,” said Cook.

Cook also explained that the new system provides “more discretion to provide proportional sanctions based on the degree of fault of those involved.” Fines are permitted, for example, but not specified because “we want the fine to be meaningful to deter behavior,” Cook explained.

The panelists confirmed that veterinarians could face charges for certain offenses, though failed to provide any specifics.

Similarly, when asked exactly how the National Stewards Panel would work, the panel explained the goal was to employ the most qualified individual available but added scant other details.

Interestingly, when it comes to the education component, the panel explained that the general plan was to have an easy-to-use education module in English and Spanish to be taken by every “covered person.” But once again, it's unclear when that would be implemented and what the education module would specifically entail.

The draft Anti-Doping and Medication Control rules are expected to be submitted to the Federal Trade Commission (FTC) later this month.

HISA Racetrack Safety Committee

The second HISA-related presentation was a Q&A between Sue Stover, chair of the Racetrack Safety standing committee and the one who took the hot seat, with Ann McGovern, the committee's director, asking the questions.

This was a statistics-heavy presentation, with Stover broadly connecting the dots between plans under HISA to start collecting relevant data in a uniform manner and what is already known about the underlying factors predisposing racehorses to catastrophic injuries.

From the industry's standpoint, arguably the most immediately pertinent information concerned racetrack accreditation standards under HISA. According to the panel, current National Thoroughbred Racing Association (NTRA) accredited tracks will receive interim HISA accreditation that will last for three years, provided they comply with program requirements. Other non-NTRA accredited tracks will receive provisional accreditation lasting for one year.

The panelists provided a slide of some of the key ingredients of the accreditation program. The list included:

• Expanded veterinary oversight
• Void claim rule
• Transfer of claimed horses' medical records
• Surface maintenance and measurement standards
• Enhanced reporting standards
• Data reporting: medications, treatments, injuries and fatalities,
• Jockey concussions and medical care reporting

The panelists warned, however, that accreditation isn't automatic nor assured for any length of time once given.

According to McGovern, “there are processes out there to help the smaller racetracks to get accredited and to learn what to do to meet the standards that are outlined.”

Stover warned, however, that “if a track were to lose accreditation, they will lose the ability to conduct interstate wagering.”
Earlier in the panel presentation, Stover–a long-time UC Davis professor–guided the audience through her research into some of the main factors underlying catastrophic breakdowns in racehorses, such as:

• The mechanical loading and cyclical wear and tear on the fetlock joint
• The relative safety of different surfaces
• A horse's regulatory and medication history
• The significance of under-conditioning and over training

Stover then explained how a key component of HISA's data collection program would be focused on these factors, at the heart of which is this statistic: That 85% of catastrophic injuries in racehorses are associated with pre-existing conditions.

Stover also explained that horses returning from a layoff are at greater risk of injury, and that, under HISA, they would be looking for information that explains what constitutes a good or bad lay-up program.

As such, “We are also asking trainers when they do send a horse for a lay-up period that they submit the training and medical records of the horse for that lay-up time,” explained McGovern.

A member of the audience asked the panel if, ultimately, this kind of data collection would lead to a scenario whereby a trainer, attending veterinarian and owner would have minimal say in a horse's training and racing program.

“That is not the intent,” McGovern replied. “The intent is to give the trainers and the vet the information so they can make the decisions on how they train the horse and how they race their horse.”

The Racetrack Safety proposed rules have already been submitted to the FTC for review, though the public will have the opportunity to tweak the document further during the mandatory public comment period.

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