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Bill That Includes New Language on HISA Passes in House

A $1.7-trillion omnibus spending bill that includes language that would give the Federal Trade Commission (FTC) more authority over the Horse Racing Integrity and Safety Authority (HISA) passed in the House of Representatives Friday. Friday's development came one day after the bill passed in the Senate. The bill will next go to President Joe Biden to be signed into law.

The language in the bill relating to HISA is meant to address issues raised by the Fifth Circuit Court of Appeals in November. That court ruled that HISA was unconstitutional because the FTC's powers were limited and that HISA had too big of a role. It is believed that the relevant language in the bill allows the FTC to “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.”

While Friday's development was a win for HISA, the battle between pro and anti-HISA forces is far from over and it's unclear what will happen next. However, it appears likely that the National HBPA and other groups fighting HISA will not back down and will continue to challenge the many issues that have been raised in the courts. It's also unclear what steps will now be taken by HISA and the FTC in order to get HISA back on track. Possibilities include asking the Fifth Circuit to reconsider its ruling in light of the fact that the FTC will have more power going forward. It's also possible that the FTC can essentially start the entire process over and ask HISA to resubmit its proposed rules.

Should the Fifth Circuit reverse itself and give HISA the green light to go forward, there are other lawsuits out there that could once again change the direction of the dispute. One is a case in which plaintiffs have made familiar arguments relating to the constitutionality of HISA that has been argued in the Sixth Circuit, which has yet to issue a ruling. Another case is pending in the U.S. District Court of Texas-Northern District, Amarillo Division, which raises several constitutional problems with the law, other than FTC rule-making input. The bottom line is that, from a legal standpoint, nothing yet is certain when it comes to HISA.

After the spending bill passed the house, the NTRA issued a press release celebrating the victory that included comments from several industry leaders.

“On behalf of NTRA members, which include broad representation of every aspect of the Thoroughbred industry, we welcome the successful bipartisan efforts of Congress to reaffirm Congressional support for HISA's mission,” said NTRA President and CEO Tom Rooney. “HISA is critical to our sport and we look forward to working collaboratively with every industry constituency to continue to support the essential role of HISA going forward. We especially want to thank Congressional leadership in Leader McConnell, Leader Schumer, and Speaker Pelosi, committee leadership in Chairman Pallone, Chairwoman Cantwell, and Rep. Schakowsky, and our longtime champions Reps. Tonko and Barr and Senators Feinstein and Gillibrand. Finally, I thank the many people from far and wide across the industry who advocated for this law with their elected officials.”

“The Jockey Club is extremely appreciative of the efforts Congress is making in support of the Horseracing Integrity and Safety Act,” said The Jockey Club President and COO Jim Gagliano. “The Jockey Club has supported nationwide, uniform rules and regulations for Thoroughbred racing for decades through numerous initiatives. HISA is Thoroughbred racing's best solution to greatly improve regulation of the sport and to help ensure our sport is clean and is safe for our athletes–both equine and human.”

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Language Amending HISA in Omnibus Spending Bill

Draft language has been inserted into the full-year omnibus spending bill designed to fix a constitutional problem with the Horseracing Integrity and Safety Act (HISA) identified by the Fifth Circuit Court of Appeals, which found in November that the law as written doesn't afford the Federal Trade Commission (FTC) enough authority in the rule-making process.

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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“We’re Back in the Courts” : Finley on What’s Next for HISA

With Congress passing a short-term bill to fund the government for a matter of days, efforts to include in the full-year omnibus spending bill a legislative fix to the constitutional problems dogging the Horseracing Integrity and Safety Act (HISA) is coming down to the crunch, Friday of next week the deadline to pass such a bill before the make-up of Congress changes shape next year.

So, where does this all leave HISA? The answer resembles a puzzle box shaken onto the floor, with HISA offering limited direction as to how all the pieces fit together.

On Monday, after the Federal Trade Commission (FTC) announced that it had disapproved “without prejudice” the program's anti-doping and medication control (ADMC) rules, HISA CEO Lisa Lazarus–someone who has consistently and admirably fielded public queries–provided some useful insights during an impromptu press conference, especially when it comes to money matters.

Since then, however, HISA has been a closed shop.

“The HISA legal team is exploring all possible legal paths forward. Once we determine the best path to protect the integrity and safety of Thoroughbred racing and its participants we will share those plans,” wrote HISA spokesperson, Mandy Minger, after multiple attempts for comment on a series of questions.

And so, the TDN turned once again to constitutional law expert, Lucinda Finley, for her thoughts on the various winding roads leading away from the Act's current crossroads. There are three important cases to note:

One is the Fifth Circuit Court of Appeals, which found in November that the law as written doesn't afford the FTC enough authority in the rule-making process. If HISA fails to get a stay on the ruling, the decision will go into effect Jan. 10.

The second is 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.

The third is a case in the U.S. District Court of Texas–Northern District, Amarillo Division–which raises several constitutional problems with the law, other than FTC rule-making input.

There is also a fourth HISA-related lawsuit initiated by the states of Louisiana and West Virginia, plus the Jockeys' Guild, but there has been no filing activity in that case since Sept. 7.

Is there a key takeaway from the current state of affairs?

Even if Congress does pass language in the omnibus spending bill fixing the problems raised by the Fifth Circuit–in other words, to cede the FTC greater rule-making authority–don't expect the legal fireworks to simmer down, warned Finley.

“We're back in the courts,” Finley said, pinpointing the case before the Amarillo Federal Court as a potentially nasty looking legal blackthorn for HISA.

No Legislative Fix

Let's begin with the scenario that lawmakers fail to insert language to amend HISA into the year-end omnibus spending bill.

Should that happen, a future legislative fix would be unlikely for months, if not a year, due to a looming political environmental where Congress is unlikely to tackle legislation other than what “it absolutely has to act on,” warned Finley.

“What's likely to happen come January when the new Congress is sworn in, the House is going to suddenly be consumed with all these investigations,” said Finley, about the future Republican-led Congress' promise to pursue investigations into Hunter Biden and others. “I don't expect that there will be much in the way of any legislative activity on anything in the first many months.”

With the FTC disapproving HISA's ADMC rules, the current status-quo will remain in effect come Jan. 1–a hybrid world of HISA racetrack safety rules applied alongside individual state medication regulations.

If HISA is unable to get a stay on the Fifth Circuit Court of Appeals ruling, the decision will go into effect Jan. 10.

The question then is: How applicable is the ruling? National? Or just in the states that fall under the Fifth Circuit's jurisdiction, namely Louisiana, Texas and Mississippi.

“HISA is not commenting on legal hypotheticals or speculating on how the ruling might be applied,” wrote Minger, when pressed to provide a clear answer.

According to Finley, the Fifth Circuit ruling applies only in those three states. However, she believes it would be “extremely prudent” for HISA to suspend the racetrack safety rules if indeed a stay is not found on the Fifth Circuit ruling, due to the likelihood of litigation by any sanctioned parties.

“As a practical matter,” said Finley, “it does tie their hands everywhere.”

Failure to gain a legislative fix in the near-term would also place emphasis on the Sixth Circuit's pending ruling.

Should the three-person panel of Sixth Circuit judges rule consistently with the Fifth Circuit, then it is unlikely the Supreme Court would take up the case, given the harmony in Circuit Court decisions.

In other words, there would be no judicial dispute for the Supreme Court to resolve.

A Sixth Circuit ruling favorable to HISA–and in opposition to the Fifth Circuit ruling–would make it more likely the Supreme Court would hear the case, however.

If petitions for a writ of certiorari are filed in both cases–these are the legal devices with which to seek U.S. Supreme Court review of a case–then that court could grant certiorari in one or both.

As for a possible timeframe, if petitions are filed in the spring of 2023 and the Supreme Court decides to review the case, then a final decision might not come until June of 2024.

A Successful Legislative Fix

But let's run with the scenario that next week, lawmakers indeed insert language into the year-end spending bill that affords the FTC greater law-making authority. What then?

First off, 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,” Lazarus explained, last Monday.

Secondly, it 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.

Which brings us to the case before the Amarillo Federal Court.

That 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, said Finley.

“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.

What's more, the district court judge in question, Matthew Kacsmaryk, is one of the “most extreme right-wing” of President Trump's appointed judges.

This leads to an important legal wrinkle in this case with potentially huge implications for HISA.

If judge Kacsmaryk 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, said Finley.

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. “It used to be extremely rare for a district court federal judge to enjoin the enforcement of a statute or regulatory scheme throughout the whole country,” she said. “They would traditionally just issue an injunction that pertained to the parties in the case.”

Come President Obama's tenure, however, “Republican state attorneys general started suing to stop various programs that the Obama administration wanted to implement. They went to what they thought were favorable district courts, and they started asking them to issue a nationwide injunction saying, 'Look judge, if the statute is unconstitutional or the rules are in violation of federal law, well, we shouldn't allow them to go into effect anywhere,'” explained Finley.

“And judges started buying this argument,” Finley added, explaining that during the Biden administration, Republican attorneys general have attempted to introduce in U.S. district courts nationwide injunctions on cases related to vaccine mandates and immigration rules.

“Groups that want to challenge whatever federal statute or regulatory scheme know what judges they can get their case before to maximize their chances of getting the statute declared unconstitutional, and with a nationwide injunction,” said Finley. “This judge in Amarillo is one of them.”

It appears likely the case currently before the Amarillo Federal Court will end up before the Fifth Circuit Court of Appeals–and then, potentially, the Supreme Court.

“You could get a very different panel,” Finley responded, when asked which way the Fifth Circuit would rule in that case. “But looming over any subsequent appeal to the Fifth Circuit is the fact that it already found a significant part of the [HISA] statute to be unconstitutional.”

The Horizon?

Finley suspects that if HISA's proponents remain firmly resolved to the pursuit of uniformity through a federal body, ongoing legal challenges to HISA might ultimately lead to an end point even more unpalatable to the law's critics–a governmental commission insulated from industry wants and concerns.

“This goes back to my initial point,” said Finley. “Be careful what you wish for.”

As an example, Finley pointed to the relationship between the governmental Securities and Exchange Commission (SEC) and the private Financial Industry Regulatory Authority (FINRA), together providing a watchdog over the nation's financial institutions.

While FINRA provides the SEC with input in the rule-making process, the SEC wields tremendous independent authority with its own enforcement and investigatory staff of government lawyers, Finley explained.

“The more these legal challenges to the HISA statute on the grounds that it delegates too much rulemaking or investigation and enforcement authority to a private body,” said Finley, “it means that the proponents of uniform national regulation are left with the option of creating a government agency to do that uniform regulation and enforcement.”

Critics of HISA, however, are keen that never happens.

The National Horsemen's Benevolent and Protective Association (HBPA) issued an open letter to the industry Thursday, taking aim at HISA and the private Authority for “too many flaws, missteps and costs that could have been averted with true inclusion and transparency in its development.”

The HBPA urged industry stakeholders to build its own set of uniform rules, independent of HISA.

“That includes the National HBPA, America's largest organization representing Thoroughbred owners and trainers; the Association of Racing Commissioners International [ARCI], whose years of hard work on model rules should be the starting point rather than largely ignored; the racetrack veterinarians, and the Jockeys' Guild,” the letter states.

Those in agreement are urged to sign onto the open letter here.

Kentucky lawmaker, Damon Thayer, is looking to resuscitate a bill passed into law by the state legislature in 2011. “It allows Kentucky to participate in an interstate compact, where a group of states can work together on laws pertaining to horseracing,” said Thayer.

The 2011 Kentucky bill allows member states “to act jointly and cooperatively to create more uniform, effective, and efficient practices, programs, rules, and regulations relating to live pari-mutuel horse or greyhound racing and to pari-mutuel wagering activities, both on-track and off-track, that occur in or affect a member state.”

To join on, each individual state would have to pass a similar interstate compact law.

“We could just take a handful of states to start off,” Thayer said, pointing to the major racing jurisdictions of Kentucky, California, New York and Florida.

“If we could get the ARCI or the National HBPA to take the lead on this, we could get something going,” he added. “I don't just want to be a critic of HISA. I want to be a critic of HISA who's offering another alternative.”

How would this venture differ from previously failed attempts at full nationwide uniformity, like the National Uniform Medication Program (NUMP)?

“That would be a good place to start,” Thayer replied, about the NUMP rules as a baseline for the compact's medication program. “But I think now that we've seen the other option, which is of federal legislation–now that it's here, they might be motivated to try something different that's led by the states.”

At the end of the day, warned Finley, the longer the industry continues without uniformity, the more susceptible it grows to attacks from outside groups on its ethical integrity.

As Finley says, “it's about convincing the public that there are national regulations with their focus on equine and human safety and welfare, and that there is serious meaningful enforcement of those rules at a national level with real investigatory power behind it.”

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FTC Delays Implementation of HISA’s Drug and Doping Program

In an order Monday, the Federal Trade Commission (FTC) announced that the Horseracing Integrity and Safety Act's (HISA) anti-doping and medication control (ADMC) program would not go into effect as scheduled Jan. 1 due to swirling legal uncertainty.

“The bedrock principle of the Act is the need for uniformity,” wrote the FTC in the order, adding that “the Commission's approval of the Anti-Doping and Medication Control proposed rule would not result in uniformity because the Horseracing Integrity and Safety Act has been held unconstitutional by a panel of the United States Court of Appeals for the Fifth Circuit.”

Oral arguments similarly surrounding HISA's facial constitutionality were held last week in a separate case before the Sixth Circuit Court of Appeals.

“The Commission therefore disapproves the proposed rule without prejudice. If the legal uncertainty regarding the Act's constitutionality comes to be resolved, the Authority may resubmit the proposed rule or a similar rule, and the Commission will consider all comments filed in this proceeding as well as any updated or new comments and filings.

“In the meanwhile, and until any future proposed rule on the subject is approved by the Commission, State law will continue to regulate the matters that the proposed rule would have covered,” the order states.

According to HISA's CEO Lisa Lazarus, who held an impromptu press conference Monday afternoon, this means that the current regulatory “status quo” will remain in place at the start of 2023.

“They made reference to the fact that, since the FTC has not approved any ADMC rules under HISA's authority, that means all the state rules remain in full force and effect,” said Lazarus, stressing that this was her “interpretation” of the FTC order.

“If there wasn't a clear statement on this issue quickly, then we might get to Jan. 1, and there might be some uncertainty around who actually has the authority. It's important for the states to know now that they're going to continue to be the ones in charge of testing on Jan. 1,” Lazarus added.

When it comes to the financial implications from Monday's announcement, HISA will refrain from collecting any of the 2023 fee assessments, designated for the individual states or, alternately, the racetracks, said Lazarus.

“The vast majority of those fees relate to the anti-doping program,” said Lazarus, explaining that the 2023 fees will be collected once the legal uncertainty has been resolved.

“There are still assessments being paid for 2022 that obviously are still required for the state racing associations who opted in, and the racetracks to cover, because those costs have already been incurred, or are in the process of being incurred,” she added.

Ben Mosier, executive director of the Horseracing Integrity & Welfare Unit (HIWU), the enforcement arm of HISA's ADMC program, released a statement explaining that HIWU will continue its education and outreach efforts “to all stakeholders in the Thoroughbred industry,” despite the delay in implementation.

“As HISA re-submits the draft ADMC rules for the FTC's approval, HIWU will use any additional time before implementation as an opportunity to ensure the industry is even more prepared for an efficient rollout of this Program, which will promote fair competition in the sport of Thoroughbred racing and the safety and welfare of our human and equine athletes,” wrote Mosier.

According to Lazarus, “So long as that preparatory work doesn't extend beyond two to three months, [HIWU's work] would still be covered by the 2022 budget.” However, “if it extends longer, we would have to revisit that issue.”

As for potential timelines moving forward, Lazarus explained that once the ADMC rules have been resubmitted with the FTC, it would take approximately 60 days for them to then go into effect, “assuming that the FTC was going to approve them substantively.”

Lazarus also broached a number of different scenarios in what appears to many in the industry a swirling morass of unpredictability and confusion.

Last month, the Fifth Circuit Court of Appeals found the law facially unconstitutional due to the lack of rule-making authority ceded to the FTC. That mandate is set to go into effect Jan. 10.

But if HISA is able to secure a stay on the Fifth Circuit's ruling in the interim, “we would then go back to the FTC [with the ADMC rules] and seek approval on that basis,” said Lazarus.

A similar case questioning HISA's constitutionality is also before the Sixth Circuit Court of Appeals. According to Lazarus, a ruling in the Sixth Circuit is expected “in the next month or two.”

If the Sixth Circuit issues a ruling favourable to HISA, “it would potentially give us the ability to continue with our program in those jurisdictions the Sixth Circuit covers,” said Lazarus.

“And it would also potentially lead to the [U.S.] Supreme Court hearing the case,” said added.

Nevertheless, even if the Sixth Circuit issues a friendly ruling on HISA, the FTC still might prove reluctant to allow HISA's ADMC to go into effect in those jurisdictions as the new law wouldn't be implemented uniformly, said Lazarus.

“For that reason, it's very possible the FTC would maintain the position that we shouldn't resubmit our rules until we have clear ability to move forward and launch across the whole country,” said Lazarus.

Another potential fix to the current knot of legal problems is a congressional re-write of the rules to cede more rule-making power to the FTC. Lazarus declined to speculate on the likelihood and possibility of that option.

A number of experts have questioned whether the legal uncertainty surrounding HISA's constitutionality puts into jeopardy the law's racetrack safety rules, already in effect. Lazarus said that Monday's order has no effect on the racetrack safety prong of the program.

“This related solely to the ADMC rules, and also, it was not a substantive review,” said Lazarus. “It was a statement on their perspective with regards to the legal uncertainties and ensuring there's clarity before we launch the new program.”

Ed Martin, the Association of Racing Commissioners International's (ARCI) president and CEO, referenced a letter the organization sent last week to the FTC highlighting “a real Catch-22” come Jan.1 concerning the legality of HISA's ADMC program.

“We are appreciative that the FTC listened and considered the request of the Association of Racing Commissioners International not to create regulatory uncertainty on Jan. 1 by approving the proposed HISA rules,” Martin told the TDN.

“Whoever got brought up on a charge could potentially have appealed it ad nauseam, and maybe win, which means there might be no rules in effect. That was the danger here,” Martin speculated. “They might be mad at me for bringing it up, but it needed to be brought up.”

The following is HISA's full statement in response to the FTC order:

“HISA appreciates the Federal Trade Commission's (FTC) decision to deny HISA's draft Anti-Doping and Medication Control (ADMC) rules without prejudice as we actively seek to resolve current legal uncertainties. HISA is eager to launch Thoroughbred racing's first and long-awaited national, uniform ADMC program and stands ready to do so. We will re-submit the draft ADMC rules to the FTC for their review as soon as these legal uncertainties are resolved, and once approved, we will implement the program through the Horseracing Integrity and Welfare Unit (HIWU). In the meantime, HIWU will continue to work toward the implementation of a uniform, independent anti-doping and medication control program that is administered consistently and fairly across the United States.”

In a statement, National HBPA CEO Eric Hamelback wrote, “The recent FTC decision is another positive step forward for horsemen in our battle against the unconstitutional takeover of our industry. The strength of our legal arguments led to a unanimous decision in the Fifth Circuit, and now the FTC has done the right thing in declining to defy a federal court that has found HISA unconstitutional. The FTC order is clear: state law continues to govern medication issues until our final victory in this case.”

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