NHBPA ‘Will Not Exploit the Deaths of Horses To Make a Point’

Not even 24 hours after the Horseracing Integrity and Safety Act (HISA) Authority and the Federal Trade Commission (FTC) alleged links between the sport's recent adverse headlines and the National Horsemen's Benevolent and Protective Association (NHBPA)'s request to delay the May 22 implementation of the Anti-Doping and Medication Control (ADMC) program, the NHBPA fired back with a response that stated the fatalities of seven horses during GI Kentucky Derby week shouldn't be used as a means to make legal arguments in the 2-year-old lawsuit.

“The Horsemen will not exploit the deaths of horses to make a point, because this industry is not going to fix anything moving forward by pointing [fingers],” stated the first line of the NHBPA's May 12 filing.

United States District Court Judge James Wesley Hendrix of the Northern District of Texas (Lubbock Division) had given the NHBPA until the close of the court on Monday, May 15, to file a response to the arguments against delaying the ADMC that were articulated May 11 by the HISA Authority and the FTC defendants.

But because the HISA Authority alleged in its Thursday filing that “recent headlines provide fresh reminders” of “inconsistent regulation,” and because the FTC claimed that the NHBPA has “repeatedly challenged” HISA's efforts to “prevent these kinds of tragedies,” the horsemen plaintiffs wasted little time in trying to address those accusations with a legal response by midday Friday, well ahead of the judge's deadline.

The NHBPA's filing stated that the equine fatalities during Derby week did, in effect, occur under the HISA regulatory framework, citing a May 8 statement released by the HISA Authority that said, “Churchill Downs has been cooperating with HISA since its inception and is in full compliance with our rules and processes.”

The NHBPA also stated that it was the FTC itself, and not any legal efforts by the NHBPA, that kept the ADMC from being in place before the Triple Crown series started.

“It was also the FTC's choice to delay the ADMC from May 1 to May 22. The NHBPA did not delay the ADMC rules until after the Kentucky Derby. The Defendants made that choice because in their view the rules were not ready for implementation in prime time on the most important race of the year,” the NHBPA's filing stated.

“[T]he Authority is still caught in its own logic trap as to the ADMC,” the NHBPA filing stated. “On the one hand, they say, 'few substances that were broadly legal under most states' preexisting regulations are prohibited under the new HISA rules.' On the other hand, they say the ADMC must go into effect immediately or horses will die because current state regulations are insufficient.”

On Mar. 15, 2021, the NHBPA and 12 of its affiliates sued the FTC and HISA Authority personnel, seeking to derail HISA's implementation on constitutional grounds. Judge Hendrix dismissed that suit on March 31, 2022.

The NHBPA plaintiffs appealed, leading to a Fifth Circuit Court reversal on Nov. 18, 2022, that remanded the case back to the Lubbock Division. In the interim, an amended version of HISA was signed into law Dec. 29, 2022. That fix was designed to make HISA compliant with the constitutional defects the Fifth Circuit had identified. On May 6, 2023, Hendrix validated the newer version of HISA as constitutional.

Now the NHBPA is planning another appeal back to the Fifth Circuit, and it wants the ADMC's rollout stopped while that process plays out.

The HISA Authority's May 11 filing explained that it sees the overall issue this way: “Congress, the Executive, and both federal courts [have] come to the same correct conclusion: the Act is now constitutional.”

The NHBPA's May 12 filing countered that claim: “Congress did not 'follow the blueprint'–it made the barest tweak possible to keep the law alive and take a second shot at the courts allowing it to go through.”

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Six States, Two Without Racing, Join Fight To Derail HISA

The attorneys general from six new states have sided with existing plaintiffs in Oklahoma, West Virginia and Louisiana by filing a Sept. 21 “friend of the court” brief in one of two currently active federal lawsuits aiming to get the Horseracing Integrity and Safety Act (HISA) voided for alleged constitutional violations before HISA even goes into effect.

Curiously, two of those six states–Alaska and Mississippi–have no current forms of legal pari-mutuel horse racing. The other states expressing support for the alleged unconstitutionality of HISA are Arkansas, Idaho, Nebraska and Ohio.

The Tuesday filing in United States District Court (Eastern Division of Kentucky) refers to HISA as “the Horse Act” and terms the HISA Authority board that will craft Thoroughbred racing's new regulatory framework as “the Private Corporation.” The United States Anti-Doping Agency (USADA), which is slated to control the drug testing aspects of HISA, is labelled in the filing as “the Private Consultant.”

Although the Authority and USADA will both fall under the theoretical auspices of the Federal Trade Commission (FTC), which is a pre-existing federal agency within the executive branch, the brief calls into question how this hierarchy will actually function in practice if HISA goes into effect July 1, 2022, as mandated by the 2020 law that created it.

“Which entity is really calling the shots, the Private Corporation or FTC?” the filing asks rhetorically. “The answer is the Private Corporation.”

The filing continues: “The Horse Act unconstitutionally delegates legislative power. That follows from three insights. First, the Private Corporation is a private entity. Second, the Private Corporation wields governmental power. Third, the Private Corporation wields the power as a principal actor–it does not perform mere ministerial or advisory tasks for the federal government…

“The Horse Act gives the Private Corporation the power to act as the federal government.

The Private Corporation writes the rules governing horseracing, enforces those rules, and issues interpretive guidance at will. While a federal agency will oversee the Private Corporation in some instances, that oversight is more symbolic than substantive…

“Because the Constitution forbids allowing private entities to exercise governmental power, the Horse Act is unconstitutional,” the filing states.

The attorneys general wrote that “the Horse Act creates an imbalance of power, and it gives the lion's share to the Private Corporation. This delegation of power undermines the Constitution.”

The filing also asks the court to “remember the importance of accountability,” stating that “Under the Horse Act, the People have no power to hold the Private Corporation to account.”

The filing continues: “The People have no say, even indirectly, in who runs the Corporation: they cannot elect anyone to the Private Corporation's board of directors, and the People's elected representatives similarly have no authority to confirm, remove, or even manage those who sit on the board…

“It is thus the will of the Private Corporation that binds the People. The Constitution tolerates no such thing,” the filing states.

The six states also write in their brief that HISA would also be operating contrary to binding legal precedent.

“When Congress directs a private entity to assist a federal agency, Congress must make the federal agency the commanding regulator,” the filing states. “Congress failed to do that here… the Private Corporation does not 'function subordinately' to the [FTC]…. The Private Corporation is chief policymaker, and that role far exceeds any ministerial or advisory duties.”

Among the plaintiffs in this lawsuit, which was originally filed Apr. 26, are three Oklahoma tracks–Remington Park, Will Rogers Downs and Fair Meadows.

The defendants are the United States of America, the HISA Authority, and six individuals acting in their official capacities for either HISA or the FTC.

This lawsuit is separate from the similar complaint over constitutional issues initiated by the National Horsemen's Benevolent and Protective Association against FTC members.

Both lawsuits are facing motions to dismiss by the defendants that have yet to be ruled upon by the federal judges in each case.

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