ed martin | Horse Racing Free Tips

ARCI Questions HISA’s Effectiveness in New Report; HISA Claims Report `Factually Inaccurate’

A staff report from the Association of Racing Commissioners International (ARCI) was issued today providing “data and a programmatic analysis HISA Programs after its first year,” with the conclusion that HISA has done little to deter the doping of racehorses or effect the catastrophic breakdown rate, according to a press release from the ARCI. HISA responded to the report, saying it was “riddled with factual inaccuracies and mischaracterizations.”

ARCI claims that after one year of being responsible for equine and racetrack safety in thoroughbred racing and six months responsibility for anti-doping and medication control, that HISA's “biggest success lies in common rules and drug testing.” Moreover, they claim, “HISA/HIWU Testing Labs have not found any new drugs that had not been found under the previous state based programs,” and “based on HIWU statements as to the extent of testing and HIWU website postings, it appears the rate of adverse analytical findings triggering regulatory review or action is roughly the same as the previous state-based program.”

The ARCI went so far as to say that, “the equine fatality rate remains small and results are mixed as to whether HISA has had any effect, either way.”

“HISA has just been made aware of the Association of Racing Commissioner International (ARCI) report released publicly today,” said a HISA spokesperson. “The report is riddled with factual inaccuracies and mischaracterizations as evidenced by data and information that is publicly available on the HIWU website. HISA remains focused on enforcing and improving upon its Racetrack Safety and Anti-Doping and Medication Control Programs to advance safety and integrity in the sport.”

ARCI said that the prepared the report in anticipation of being asked for it by state racing commissions. They also said that “HISA receives considerable help from State Racing Commissions who are expected to provide almost $18 million in funding or services in the coming year, and that “HISA's almost $81 million proposed budget for next year relies on the thoroughbred racing industry paying almost $60 million in assessments.”

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Letters To The Editor: James Gagliano

In Association of Racing Commissioners International (ARCI) President Ed Martin's letter to the Thoroughbred Daily News on Feb. 2, he once again defends the status quo with few facts and no real solutions to racing's lack of national uniformity in rules and regulations for safety and medication control.

Ed has been defending the status quo for years. In 2018, and again in 2020, Ed testified before Congress against the then-forerunner to the Horse Racing Integrity and Safety Act, saying it was “a radical and unnecessary federalization of a state responsibility that is exercised effectively.”

Exercised effectively?

Clearly, he chooses to ignore the March 2020 federal arrests, and ultimate convictions, of the 27 trainers and veterinarians who, incidentally, operated worry free for years under Ed's racing commissioners. He chooses to ignore that our industry is no longer operating in a vacuum, that our equine athletes have advocates outside the racetrack and they have influence with state and federal legislators. Finally, Ed chooses to ignore that HISA has been working hard, and for the most part cooperatively, with states and racetracks to implement HISA rules.

Ed needs to be reminded, again, how we got here.

Over decades, regulators have repeatedly “promised” to clean up horse racing. There have been countless calls for rule uniformity since I can remember. Virtually every industry conference has touted the future as having standardized nationwide rules with more vigorous enforcement. The concept is nothing new, but because of HISA, this is the first time the goal is truly within our grasp.

The Racing Medication and Testing Consortium did a lot of good for the industry, but the nationwide reform we thought would come from it never materialized. I had hopes for the National Uniform Medication Program (NUMP), but once again, the regulatory authorities of different jurisdictions were unable to enact the same rules and regulations across the nation. In 2020, The Jockey Club developed a scorecard for the NUMP to see if it was effective. It wasn't. Only nine states had fully adopted all four phases of the program; 16 states had adopted only one. Mid-Atlantic states joined forces over the years to come into compliance with NUMP, but most other regions did not.

Ed has long suggested that a federal racing compact among the state regulators is all that we need. He conveniently omits that there already is a compact, and it has attracted virtually no support from the membership of the ARCI. With the ability of individual states to opt out of rules they do not favor, the compact all but guaranteed the same morass of inconsistent and conflicting rules among the states so many key industry participants have long wanted to correct.

Ed wrote, “It's hard for some of us who have been around for a while to watch as this situation could have been avoided.” In a way, he's right about that point. HISA would never have had an adverse legal decision if the Horseracing Integrity and Safety Act had never become law. But, for those of us who want change, Ed's worn-out proposals to “get everyone in a room and come up with an alternative approach to avoid the endless and costly litigation” reflects an inability to either understand or appreciate that there is a divide in this industry between those who savor the illusionary comfort of the status quo and those who know that if racing is going to truly survive it must make safety of our athletes and integrity of our game our preeminent goals.

Perhaps Ed has been fighting against HISA since the beginning because he's afraid people will realize that the ARCI failed its mission. According to ARCI's website, it sets “…international standards for racing regulation, medication policy, drug testing laboratories, totalizator systems, racetrack operation and security, as well as off-track wagering entities.” So, HISA is making medication regulation standards uniform and meaningful, something ARCI has never been able to do.

It is abundantly clear to anyone inside or outside of racing that our current state-based anti-doping, medication control and safety rule structure is not equipped to create national uniformity and set high standards for safety and integrity.

As we learned in March of 2020, it took the resources of the FBI and outside investigators to get the job done and bring justice to the blatant cheaters manipulating racing, while at the same time, laying bare the incompetence of the regulators that were supposed to be protecting the sport. The Jockey Club has long supported the creation of a nationwide approach grounded in federal law because we realize that horse racing, as a national sport, cannot survive if history keeps repeating itself and national uniformity is never achieved.

Yet once again, Ed Martin is defending the status quo. Don't let him rewrite a history that he deservedly owns.

—James L. Gagliano, President and COO, The Jockey Club

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Statement On HISA’s Anti-Doping Rules From ARCI

The Association of Racing Commissioners International (ARCI) has formally asked the Federal Trade Commission (FTC) to set aside and temporarily not approve proposed anti-doping and medication control rules proposed by the Horseracing Integrity and Safety Authority (HISA) until the constitutionality of the HISA Act is determined by the Courts.

“This has nothing to do with wanting uniform rules or having a central rule-making authority, two things the ARCI supports,” said Ed Martin, ARCI President. “This all has to do with avoiding a situation where an enforcement action is overturned because the authority of the enforcing entity to act is in question. The potential exposure to the entire sport is avoided by leaving the existing state rules and enforcement in place until this gets sorted out.”

The ARCI Board voted unanimously to make a similar request in early December and the FTC shortly thereafter rejected the proposed HISA rules without prejudice citing reasons of the underlying legal uncertainty. With the Fifth Circuit Court's rejection earlier this week of HISA's petition based on changes made recently to the Act, the potential for regulatory chaos remains.

The filing made today reads as follows:

“ARCI requests that the FTC yet again reject the Rules or, at the very least, withhold decision until all legal challenges to the Act are finally adjudicated. As you might know, in addition to the federal court case that led to the Fifth Circuit's ruling, other litigations raising material questions about the legitimacy and constitutionality of the Act remain pending. Moreover, after HISA resubmitted the proposed Rules, the Fifth Circuit denied HISA and the FTC's petition to vacate the court's earlier ruling and for a rehearing, meaning two important things: (1) by mandate of the Fifth Circuit, the preliminary injunction prohibiting HISA enforcement in states within the Fifth Circuit will return to full effect and no longer be stayed; and (2) the Fifth Circuit's decision that the Act is unconstitutional will stand for the time being.

Once again, the FTC is in a unique position to restore some level of regulatory certainty to the horse-racing industry. It should do so by quickly and publicly announcing what it already determined a few weeks ago–that it will not approve HISA's proposed rules at this time. A decision to the contrary would come at too great a cost, as it would lead to regulatory uncertainty, exacerbate existing confusion throughout the horse-racing industry, and seriously compromise public interests.”

Should the FTC approve the HISA rules and penalties were imposed for a violation of those rules, the action could be appealed and potentially overturned and wiped away due to the finding in the Fifth Circuit that HISA is unconstitutional.

Likewise if a racing commission enforces the existing State anti-doping rule and penalties imposed for a violation are appealed using the argument that the federal rule preempts state action the possibility that it can be overturned also exists.

The only way to avoid this Catch-22 is to leave state rules and enforcement in place by delaying final action on the HISA ADMC rules.

The ARCI has not taken a position on the pending litigation, although some member states have and are litigating the constitutionality of the Act. In August, Martin called for HISA to sit down with all litigants and negotiate a way out. That did not happen.

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Letter to the Editor: HISA Smack Down

Despite HISA court filings claiming everything was legal and pronouncements that the HIWU anti-doping program starts on March 27th, reality needs to set in on the Thoroughbred industry in the same way it does for a young child who comes to realize that the Christmas Eve Santa tracking report may not be true.

This week's decision and mandate just issued by the Fifth Circuit Court of Appeals is nothing less than a smack down for HISA. It underscores that the constitutional questions are far from settled and may actually break against them. Given the FTC's prior action, this could doom HISA's hope of quick approval of the resubmitted medication control rules.

It's hard for some of us who have been around for a while to watch as this situation could have been avoided. The uncertainty of all this is deeply troubling to everyone.

Despite public pronouncements from Ms. Lazarus that HISA is transparent, the industry has no idea as to their financial stability. Some racetracks are quietly questioning whether to pay the HISA assessments and are researching if they can get their money back if it all goes south. Some testing labs have expressed similar concerns.

As for the States: 1) most could not elect to assume financial responsibility for HISA, and,2) HISA/HIWU has yet to secure any signed ADMC implementation agreements seeking the use of state assets or personnel, with or without reimbursement. It's not that the States are unwilling to help; it has to do with the avoidable problems associated with how HISA organized its programs and neglected to listen to realities raised during the countless implementation calls ARCI organized for them in 2021.

In May, 2022, I announced that most state racing commissions believed technical corrections to the statute were necessary in order for HISA to work. Rather than begin substantive discussions as to how to do that, HISA staff barreled forward and somebody, somewhere decided it was a waste of their time to have HISA leadership talk to me about easier ways to get where they are trying to get.

In August, while on a panel with Ms. Lazarus in Saratoga I proposed that HISA get everyone in a room and come up with an alternate approach to avoid the endless and costly litigation. That didn't happen. My repeated requests to meet privately with the HISA Board to share an independent assessment and an analysis of their options were also ignored. No skin off my back, but it is frustrating when you care about this industry and see a golden opportunity starting to slip away.

On a November American Horse Council call with congressional officials, Jockey Club staff questioned my personal credibility as I was explaining the new financial burden being put on racetracks just as I was making progress convincing a Member of the House Appropriations Committee of the need to add $50 million in federal funding for HISA. Heaven knows they could use it to mitigate the cost being imposed on the racetracks.

When that $1.7 trillion bill eventually passed there was not a dime for racing. Congressman Tonko, when asked by an Albany reporter why no money was included, responded that the industry didn't ask for any. Amazing, absolutely amazing.

Then there were laudatory press statements issued by major HISA supporters praising Senator McConnell for passing a “fix”. All that I could think of was “The Emperor's New Clothes” or the angry ladies in the 1984 Wendy's “Where's the beef?” commercial. Apparently from Tuesday's court action, the tweak to the Act didn't work and racing missed a golden opportunity to have some federal funding.

So here we are. Despite the hard work of many, this is starting to look like a mess.

While the Santa tracking system may not be truth, the children who used to rely on it have found they can still have Christmas. So too for racing. But it may have to look different than what we have now–a fat man stuck in a chimney being pushed by his supporters from above with a stick. There's an easier way if only some people were not so intransigent.

Ed Martin is the President of the Association of Racing Commissioners International, a non-profit group of international regulators which provides a mechanism for collective policy formation, the exchange of information, research, education and training, and integrity advocacy.

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