Open Letter To The Industry: Tom Rooney

Many of you may have seen that last week a bill was introduced in Congress to repeal the Horseracing Integrity and Safety Act, better known as HISA. I want to set the record straight as to what this legislation does or doesn't do, assure you that the bill isn't going anywhere in Congress, and stands no chance of becoming law.

First things first-it's important to remember that any member of Congress can introduce a bill. They write the language, file the bill, and voila it's been introduced. Just in the 118th Congress, which began in the beginning of 2023, more than 10,000 bills have been introduced. Of those more than 10,000 bills, only 14 have become law. It's important to have that perspective to truly understand why the likelihood of this bill ever becoming law is next to nothing.

Now let's get to this particular bill. Introduced by Congressman Higgins from Louisiana, the Racehorse Health and Safety Act (RHSA) has just one cosponsor. In order for any bill to become law, it needs a lot of support, support that comes in the form of “cosponsors.” HISA had more than 260 cosponsors and was supported by both Republicans and Democrats. RHSA only has one, and both are Republicans. In fact, the member of Congress who has been working to garner support for this bill for months has decided he can no longer support it. Without bipartisan support and many cosponsors, bills don't go anywhere in Congress.

Now to the lack of merits of the legislation. The very same people who spent years and millions of dollars fighting in Congress and in the courts against uniform safety standards and a unified regulator would now have us believe that they are actually for uniform safety standards and a unified regulator. The goal of RHSA is to repeal HISA, return the industry to the state-by-state patchwork regulatory system, and then create a unified regulator and unified safety standards. You read that correctly-this bill suggests rolling back all the work HISA has done, turn the industry back over to the states, and then create its own regulatory body and rules. Instead of trying to work with HISA, within the scope of the law, HISA's detractors are simply wasting everyone's time.

Congressman Higgins and the detractors of HISA know that it would take years to slog through the cumbersome process of passing enabling legislation in nearly three dozen racing states to establish RHSA. Repealing HISA to then enact RHSA with the consent of 32 states would be similar to the time-consuming process of amending the Constitution, which has only happened 27 times in more than 200 years. This bill is a laughable attempt to turn back the clock on track safety and anti-doping rules – which is precisely why there is so little support in Washington for the HISA repeal bill.

As I've said for months, these detractors need to put an end to their arguments. It is crucial that the whole of the Thoroughbred industry comes together for the betterment of our sport. In these challenging times, we must rally around HISA to ensure the highest standards of integrity and safety are upheld. The Racehorse Health and Safety Act would set the industry back when we should be setting aside our differences and working collaboratively towards a brighter, safer future for Thoroughbred racing under the guidance of HISA which is already the law of the land. Together, we can safeguard the integrity and longevity of this beloved sport.

Tom Rooney is the President and CEO of the National Thoroughbred Racing Association. He formerly served in the U.S. House of Representatives for five terms, representing the state of Florida.

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HBPA: ‘Best Of Both Worlds’ For HISA Is ‘Worst Of All Worlds’ For Horsemen

With oral arguments in the United States Court of Appeals for the Fifth Circuit now five weeks away, the National Horsemen's Benevolent and Protective Association (NHBPA) filed a legal brief Aug. 25 underscoring that the Horseracing Integrity and Safety Act (HISA) Authority unconstitutionally “wants the best of both worlds” by allegedly portraying itself as both a governmental body or a private organization “depending on which suits its interests on any individual argument.”

“Sometimes [the Authority] wants to be like a government entity, with the power to compel registration, collect mandatory fees, conduct searches, draw blood and urine samples, and impose sanctions with 'the force of federal law,'” stated the 36-page brief filed Friday by the NHBPA and 12 of its affiliates.

“Other times it wants to be a private business league, choosing its own board, running its own corporate affairs, and exempt from the Appointments and Appropriations clauses, the Freedom of Information Act, etc…” the brief continued.

This purported dual nature of the Authority, the NHBPA alleged, “exposes the overall flaw” by which the 2022 rewrite of the HISA law should be struck down.

“Nothing could be more unfair or inequitable than to have a regulator with all the powers of government but exempt from all the democratic accountability and safeguards for liberty imposed on government,” the NHBPA's filing stated.

“The best of both worlds for the Authority is the worst of all worlds for horsemen,” the NHBPA's filing asserted.

The Fifth Circuit oral arguments scheduled for the first week in October represent the latest attempt by the NHBPA to derail the HISA law via an underlying lawsuit that has persisted in the federal court system for nearly 2 ½ years.

In addition to the HISA Authority, personnel from the Federal Trade Commission (FTC) are defendants in that suit.

Back on Aug. 4, the Authority defendants filed their own brief that told the court the continued legal attacks by the NHBPA are futile because “Congress, the Executive, and all three federal courts that have considered the amended Act have reached the same conclusion: HISA is now constitutional…

“Appellants' scattershot attempts to invalidate the Act on other grounds come up short, too,” the Authority's brief continued.

The NHBPA's Aug. 25 filing swatted back at those claims, citing a legal precedent that stated “it is a central tenet of liberty that the government may not…allow private individuals to regulate other private individuals.”

As the NHBPA put it, “That is now what happens every day in horseracing. The district court must be reversed, and the Act declared unconstitutional, again.”

The first time the HBPA plaintiffs attempted to challenge the original 2020 version of the HISA statute in federal court, on Mar. 15, 2021, the suit was dismissed, on March 31, 2022.

The HBPA plaintiffs then appealed, leading to the above-referenced Fifth Circuit Court reversal on Nov. 18, 2022, that remanded the case back to the lower court. In the interim, an amended version of HISA got passed by Congress and was signed into law by President Joe Biden on Dec. 29, 2022.

On May 4, 2023, the lower court deemed that the new version of HISA was constitutional because the rewrite of the law fixed the problems the Fifth Circuit had identified.

The HBPA plaintiffs then swiftly filed another appeal back to the Fifth Circuit, which is where the case stands now.

“The FTC and the Authority continue to tie themselves in knots trying to get around two obvious problems: the Act, even as revised, does not allow the FTC to amend or modify rules when they are proposed by the Authority,” the NHBPA's Aug. 25 filing stated. “And the Act, even as revised, still requires the FTC to approve rules written by the Authority on a consistency basis, which this Court held to be a violation of the private non-delegation doctrine.”

The NHBPA alleged in its filing that the Authority and the FTC's “solution to a lack of public accountability is to find an additional way to eliminate public accountability, making matters worse.”

The NHBPA's filing warned of dire ramifications to society in general if the Fifth Circuit doesn't declare the recently amended HISA law unconstitutional.

“If this Court ratifies this law, we will see more and more of our democracy slip away as Congress increasingly turns to this convenient charade of private self-regulatory corporations to govern entire industries,” the NHBPA's filing stated.

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Sam Houston Postpones Interstate Simulcast Wagering

Despite previously announcing that interstate simulcast wagering would resume Friday, Feb. 3, Sam Houston released a statement Friday morning postponing it.

“We have determined that more time is needed to fully evaluate the many legal complexities surrounding recent court decisions and the HISA amendment enacted by Congress at the end of last year,” the statement read. “While we are eager to export our signal across the country, our commitment to maintaining federal and state compliance remains our top priority. We will export our signal across state lines when we are confident that it can be done in accordance with applicable laws and regulations. Until then, we will only broadcast our signal throughout Texas and to approved international locations but will not simulcast to any other locations in the United States.”

The statement can be read in full at https://www.shrp.com/.

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Statement on HISA from NTRA President and CEO Tom Rooney

“As a former instructor of constitutional and criminal law at the United States Military Academy, I implored upon the cadets that we are a nation of laws, not of emotional disinformation. Article III of the Constitution gives the courts the task of interpreting the laws to determine constitutionality and that process is exactly what is happening right now with HISA.

“HISA is the law of the land and has been challenged in the courts. In this country constitutionality is not determined by those who may disagree with the language of the law but rather by the courts. HISA was written and passed by Members of Congress and signed originally by President Trump, then amended and signed by President Biden to make our industry better. Petitioning Members of Congress to deem the law unconstitutional is inconsistent with our system of government going back to Marbury v. Madison, unless these efforts are made to repeal the law and replace it with new legislation. Unfortunately, that is not what opponents of the law appear to be seeking. It is therefore my opinion that these opponents are misguided and are serving as a distraction from actually making the Thoroughbred industry safer and better for everyone.

“The fact of the matter is the Thoroughbred racing industry has needed change for quite some time. We all know that. The path we were going down was unfair and unsafe, and after some challenging years we could not as an industry keep doing business as usual. Since the passage and implementation of HISA, we as an industry have made strides that can help preserve horse racing so that future generations can also enjoy it. HISA has been very collaborative, has sought to work with everyone, and has always led with a call for unity. With minimum standards of fairness as set by HISA across the country, Thoroughbred racing will be more competitive and more fun. While we await final verdicts from the courts we must continue to work together as an industry to improve our sport, so the dream of future generations enjoying horse racing can become a reality.

Tom Rooney, President and CEO of the NTRA, five-term member of Congress from the state of Florida, Army JAG Corps Captain

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