Motion To Dismiss: Feds Say HBPA ‘Jumped The Gun’ With HISA Challenge

Federal attorneys have filed a motion to dismiss the lawsuit filed by the National Horsemen's Benevolent and Protective Association in an attempt to put the brakes on the Horseracing Integrity and Safety Act (HISA), reports the Thoroughbred Daily News, arguing that the HBPA's “complaint questions the validity of a law that currently subjects them to no obligation or penalty.”

The NHBPA and 12 of its state chapters filed suit in March in the U.S. District Court for the Northern District of Texas, seeking to have HISA and a number of its elements declared unconstitutional. The crux of the suit is that plaintiffs believe HISA delegates legislative authority to a private organization and private individuals in violation of the U.S. Constitution

In the Apr. 30 motion to dismiss, federal attorneys argue: “Plaintiffs jumped the gun bringing this constitutional challenge.”

The filing continued: “Neither the Federal Trade Commission (FTC) nor the [HISA] Authority have even proposed rules that they could endeavor to enact. There has been no proposal for rules regarding permissible and impermissible drugs; no proposal for rules regarding racetrack safety; and no proposals for rules regarding enforcement procedures or penalties…There has not even been a rule crafted to govern how the Authority is to 'propose' any rules to the FTC–which is all fitting, given that HISA is only four months old.”

Read more at the Thoroughbred Daily News.

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Feds: HBPA ‘Jumped the Gun’ in HISA Lawsuit

Federal attorneys want the National Horsemen's Benevolent and Protective Association (HBPA)'s anti-constitutionality lawsuit thrown out of court, arguing that the HBPA's allegations of injury regarding the Horseracing Integrity and Safety Act (HISA) “are entirely threadbare” because no rules, regulations or fees have been established by the not-yet-in-effect regulatory body.

“Plaintiffs jumped the gun bringing this constitutional challenge,” the federal government stated in an Apr. 30 motion to dismiss filed in United States District Court for the Northern District of Texas. “Their complaint questions the validity of a law that currently subjects them to no obligation or penalty.”

The filing continued: “Neither the Federal Trade Commission (FTC) nor the [HISA] Authority have even proposed rules that they could endeavor to enact. There has been no proposal for rules regarding permissible and impermissible drugs; no proposal for rules regarding racetrack safety; and no proposals for rules regarding enforcement procedures or penalties…There has not even been a rule crafted to govern how the Authority is to 'propose' any rules to the FTC–which is all fitting, given that HISA is only four months old.”

In March, the HBPA, with the support of 12 of its state chapters, sued 11 individuals in connection with their official capacities related to the FTC and HISA's not-yet-active Authority. The HBPA claimed that the law, “unconstitutionally delegates to a private entity the legislative authority to regulate” the sport, and asked the court to “declare HISA unconstitutional and preliminarily and permanently enjoin Defendants from implementing and enforcing the law.”

The feds have responded that the HBPA has it wrong: The bill that got signed into law in December “merely creates a framework for the FTC, with the subordinate aid of the 'private, independent, self-regulatory, nonprofit' HISA Authority to enact future standards and rules.

“Congress established this framework because it concluded that, in the absence of independent national oversight and uniform drug and safety standards, the horseracing industry was failing to adequately protect its participants,” the filing stated.

“But, recognizing that rulemaking in a new area should proceed carefully and with proper deliberation, Congress provided that no regulations governing the conduct of horseracing can take effect before July 1, 2022. Regulations the FTC enacts under HISA may (or may not) impact Plaintiffs in the future. But there is not even a proposed regulation for Plaintiffs to complain about today.”

The filing continued: “Plaintiffs thus fail the most basic requirement for invoking this Court's jurisdiction: they cannot establish that they have been harmed in any concrete way by the law they protest. Nor can Plaintiffs establish that their challenges to the statute are ripe for judicial review.

“Adjudicating the merits of Plaintiffs' legal claims now would require the Court to evaluate HISA's framework in the abstract, unaided by any concrete facts or history of agency action. There is no justification for the Court treading this path under any circumstances, and it is doubly improper when Plaintiffs are asking this Court to resolve constitutional claims.”

The federal attorneys also argued that the HBPA's suit fails to support its central claim that HISA unlawfully delegates legislative power to the FTC and the private Authority.

“HISA is far more detailed than the statutory schemes that the Supreme Court has sustained against delegation challenges over the past 80 years,” the filing stated. “And both the Supreme

Court and courts of appeals around the country have repeatedly confirmed that private entities can properly provide extensive assistance to federal agencies, so long as those agencies retain

final decision-making authority and control, as the FTC does here.”

The feds asked the judge to toss out the lawsuit, either on the grounds of the alleged lack of subject-matter jurisdiction or, in the alternative, for the HBPA's supposed failure to state a claim.

“At best, Plaintiffs' complaint could be read to suggest that the Plaintiffs might be subject to some rules they dislike in the future…The Plaintiffs' challenge at this point therefore amounts to nothing more than a request for an advisory opinion on the constitutionality of HISA. This Court is not empowered to provide that, “The Plaintiffs may be able to show a concrete injury from HISA on some future occasion when a specific rule affects their interests,” the filing summed up. “Until then, however, the Court lacks jurisdiction to entertain their claims.”

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Thoroughbred Safety Coalition: HISA ‘The Beginning Of A New, Safer Era For Our Storied Sport’

To all of the hard-working individuals who make up the Thoroughbred community and the fans who share in our love for the horses that set our sport apart from all others: 

As one of our nation's oldest and most celebrated pastimes, racing's traditions run deep. However, the most durable traditions are the ones that evolve and improve with time. Amid the pageantry and beauty, we've faced challenges around equine safety and racing integrity  throughout our history, which is why leaders across the Thoroughbred industry came together  to make the changes necessary to bring our sport into the 21st century and secure its future for  generations to come. Leaders in Thoroughbred racing agree with those who have argued for  greater transparency and more rigorous safety standards, and are united in choosing to prioritize, above all else, the safety and well-being of our equine athletes. 

Through the collaborative work of the Thoroughbred Safety Coalition (the Coalition), its members, and broader efforts by leading organizations across the Thoroughbred industry, including The Jockey Club, we worked with lawmakers to help pass The Horse Racing Integrity and Safety Act (HISA), which was signed into law on December 27, 2020. 

Under the oversight of the Federal Trade Commission (FTC), the independent Horseracing Integrity and Safety Authority (the Authority) will implement consistent, transparent, and enforceable rules across all state racing jurisdictions. These efforts will be divided into an Anti Doping and Medication Control Program, which will be executed and enforced in partnership with the United States Anti-Doping Authority (USADA), and a Racetrack Safety Program. Most of the medication, organizational and operational reforms that the Coalition and the National Thoroughbred Racing Association (NTRA) have adopted and continue to advocate for will likely  serve as a basis for these programs. Additionally, the Authority will work with state regulators  and horsemen's groups to ensure the most efficient and cost-effective approach to  implementing the new programs. 

The passage of HISA represents a monumental turning point for our traditionally decentralized industry, and we hope it will go a long way in increasing public confidence in the sport. Even stakeholders who historically sought to avoid government intervention in racing are embracing HISA because they understand that it represents a roadmap to a safer sport and will modernize  the industry through strengthened accountability measures. 

HISA has given all of us a mandate to build on the unprecedented display of unity that brought us to where we are today. The formation of the independent Authority as a vehicle to establish and implement uniform medication rules and racetrack safety standards will codify the culture  of safety and integrity that the Coalition was founded to strengthen and protect. The Coalition, The Jockey Club, the NTRA and our respective members are proud to have played a role in this industry-wide effort that will improve our sport. Now, we must work together to support HISA's continued success and the success of Thoroughbred racing for generations to come.  

This is the beginning of a new, safer era for our storied sport, and our work has only just begun. We can't think of a greater task to undertake. 

Sincerely, 

American Association of Equine  Practitioners  

Aqueduct Racetrack 

Belmont Park 

Breeders' Cup Limited 

Churchill Downs, Incorporated Colonial Downs Racetrack 

Del Mar Thoroughbred Club Fair Grounds Race Course 

Golden Gate Fields 

Gulfstream Park 

Keeneland Association Inc. 

Kentucky Thoroughbred Association Laurel Park 

Monmouth Park 

National Thoroughbred Racing Association

New York Racing Association, Inc. (NYRA)

Parx Racing 

Pimlico Race Course 

Presque Isle Downs 

Santa Anita Park 

Saratoga Race Course 

Suffolk Downs 

The Jockey Club 

Thoroughbred Owners & Breeders  Association 

Thoroughbred Safety Coalition 

Turfway Park 

1/ST RACING

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Thoroughbred Idea Foundation: ‘Racing’s Wagering Business Needs To Evolve’ To Afford HISA

The creation of the Horseracing Integrity and Safety Authority (HISA) is the most significant development in American racing at the federal level since the passage of the Interstate Horseracing Act in 1978.

Questions now being rightly considered include how much HISA will cost and from where will its funding originate. Below, the Thoroughbred Idea Foundation offers some perspective on the costs. But as the greater industry determines from where the funding will come over time, racing should proactively adopt policies which seek to grow the wagering business.

The industry already has a plethora of obligations – aftercare, backstretch programs, integrity matters, jockey health and equine research, not to mention purses, the main driver for investment from owners. HISA adds to these. The best way for horse racing to afford all of its obligations is to grow the business.

Racing's wagering business needs to evolve – appropriate pricing of bets, improving access and reducing costs to accurate data, complementing pari-mutuel betting with fixed odds options, modernizing existing bet processing and infrastructure, all while increasing transparency to the public in many areas. Increasing costs to our already fragile wagering markets, or to a declining base of horse owners, without these needed improvements is a recipe for disaster.

Any step where costs to betting are increased to help pay for HISA programs will hurt the greater racing business.

PROJECTING COSTS

There is every reason to expect that a new level of federal bureaucracy functioning on top of individual state commissions will be expensive.

As it relates to testing, these expenses are fairly clear. For example, if the per-race spending on testing alone from the more than 5,000 races across all breeds overseen by the California Horse Racing Board were extrapolated across the entirety of U.S. Thoroughbred racing, nationwide testing alone would run approximately $20 million annually at current standards.

This is a cost already borne by individual commissions.

Factoring improvements and upgraded requirements it should be understood that the $20 million – just for testing – merely represents a starting point.

Administratively, what it will cost to start a federal authority from scratch is more challenging to envision. The HISA creates a layer of federal bureaucracy where one never previously existed. This isn't necessarily good or bad, it is a reality in development with little insight on costs to this point.

HISA requires the registration of all “covered persons” – an umbrella term which, according to the language of the bill, includes “all trainers, owners, breeders, jockeys, racetracks, veterinarians, persons (legal and natural) licensed by a State racing commission and the agents, assigns, and employees of such persons and other horse support personnel who are engaged in the care, training, or racing of covered horses [basically, all active Thoroughbreds].”

Most are already licensed by existing commissions, but some are not. Will that information be shared or require completely new registrations? The exact administrative requirements are (understandably) unknown to this point, but all of this will come with costs.

The United States Anti-Doping Agency (USADA), which will assist in the development of HISA, serves as a potential reference point to understand the possible administrative expenses.

According to its annual report, USADA conducted more than 14,000 tests in 2019 across various groups which include America's Olympic and Paralympic athletes, services to the UFC or contracted services for other events, such as the Boston and New York City Marathons. Off a base of just 30,000 Thoroughbred races, down from 36,000 run in 2019, it is reasonable to expect the number of annual tests in U.S. Thoroughbred racing would be no less than five times larger than those conducted by USADA, and very likely more.

USADA's testing costs in 2019 ran more than $13.5 million, but non-testing expenses, which includes results management, science, research and development and drug reference, education and awareness, as well as general and administrative expenses totaled an additional $9.3 million.

It would be reasonable to estimate that HISA's costs would be similar, if not more given a substantially increased number of tests, across a far larger base of competitors and events (races) requiring tests.

Whatever the exact costs, it will be more than pre-HISA times.

GROW THE BUSINESS

The best chance racing has of covering HISA costs is if racing finds a way to actually grow the business, turning around two decades of decline.

Grow the business. Grow the business. Grow the business.

State commissions are, for the most part, funded through fees assessed to, or withheld from, the sport's participants. Receiving a portion of the hold from wagering takeout is one source of funding, licensing fees and starter fees are another. Some receive funding through a share of alternative gaming revenue too.

If wagering on racing continues to decline, recalling that it has dropped roughly 50% adjusted for inflation over nearly the last two decades, the ability to pay for HISA and plenty of other programs required of the industry – aftercare initiatives, jockey health, equine research, among others – would grow increasingly difficult. Takeout hikes would be a completely counterproductive measure to pay for HISA as betting churn would decline.

The path to a brighter future, where the industry's liabilities can be covered, is wagering growth.

More wagering on racing yields a more sustainable business for all stakeholders. But yet, many of the decisions made by racing operators over the last two decades have been in opposition to growing wagering on racing. This has to change.

Whether it is the continuation of churn-killing jackpot bets, high takeout rates, an aversion from many to exploring fixed-odds options, or continuing to operate antiquated pari-mutuel bet-processing systems without modernization – these and other actions have greatly limited racing's growth all as the sport's liabilities increase and its social license to operate becomes tougher to retain.

As racing and humanity emerge from a troubling calendar year, make no mistake that 2020 was a year of tremendous growth in legal sports betting. Those states doing the best with sports betting are those which have embraced online betting and competitive markets. While the overall environment for betting has never been stronger, racing's wagering product remains stagnant.

If racing wants to succeed, and cover its growing liabilities which now includes HISA, it must undertake measures to radically improve – and grow – the wagering business.

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