In short, the Fifth Circuit's pending ruling could have profound implications for the short and long-term future of the federal law.

Oral arguments in the Fifth Circuit follow a key decision earlier this year out of the United States Court of Appeals for the Sixth Circuit, finding the HISA statute indeed to be constitutional.

There is also a separate HISA-related case in the Eighth Circuit led by Bill Walmsley, Jon Moss, and the Horsemen's Benevolent and Protective Association (HBPA) for Iowa.

To get a handle on the various implications from the pending Fifth Circuit ruling, the TDN once again spoke with constitutional law expert Lucinda Finley, Frank Raichle Professor of Trial and Appellate Advocacy, and director of Appellate Advocacy at the University of Buffalo Law School.

The following has been edited for brevity and clarity.

TDN: When is the Fifth Circuit likely to issue its ruling?

Lucinda Finley: It could be within a month. It could be up to several months. It's very hard to tell how long a court will take in ruling on an appeal. They don't have any deadline.

TDN: Can we glean any kind of meaning on how they might rule from the length of time it takes to deliver that ruling?

LF: In general in federal appellate cases, the length of time that it takes for a ruling to come out can vary by several factors. One is how many other opinions still to be issued are backlogged in the court. Another is whether there's disagreement within the panel of three judges. Is there going to be a dissent? Is there going to be a concurring opinion?

So, if there's going to be more than one unanimous majority opinion, it'll obviously take longer for the final result to be issued because multiple judges will be writing opinions and perhaps circulating their drafts amongst each other, trying to persuade someone to modify their position.

TDN: How do you think the Fifth Circuit will rule?

LF: I can't predict. I have no basis to make a prediction.

TDN: Are you able to look at any other of their rulings as a potential barometer?

LF: No. I mean, it's really going to come down to whether they agree with the Sixth Circuit that the changes congress made to give the [Federal Trade Commission] more rulemaking authority are sufficient to fix the constitutional problem that the Fifth Circuit previously identified.

TDN: What are the implications from the pending Fifth Circuit ruling for HISA?

LF: If the Fifth Circuit agrees with the Sixth Circuit and finds that the current amended version of HISA is constitutional, that makes it much less likely that the U.S. Supreme Court would take up the cases because there would not be a conflicting view between different U.S. circuit courts of appeals about the constitutionality of the federal statute.

Conversely, if the Fifth Circuit disagrees with the Sixth Circuit and finds that the amendments that Congress made are not sufficient to make the law constitutional, that makes it close to a hundred percent likely that the U.S. Supreme Court would take up the cases.

Having two different circuit courts in the country saying the same federal statute is and is not constitutional is not a situation that's tenable. The U.S. Supreme Court would have to resolve that one.

(Have an opinion? Vote by clicking on the question below.)

TDN: Just yesterday, the former president of the National HBPA said that no matter how the Fifth Circuit rules, the nation's highest court will eventually have to be called upon to settle the matter. Sounds like it's not that simple.

LF: Let me back up.

You currently have the Sixth Circuit already having ruled that the HISA statute is constitutional. You have the Fifth Circuit having heard oral arguments. A decision will come within the next few months.

You also have the Eighth Circuit considering the constitutional question, the briefs of the challengers already having been filed and the briefs of the FTC and the defenders of HISA yet to be filed. So, you have three circuit courts being asked to consider the constitutionality of HISA.

If all three of them wind up agreeing that HISA as currently written is constitutional, I don't think it's likely that the Supreme Court would hear the case.

[But] if the circuit courts disagree about the constitutionality piece, as I said, I think that makes it close to a hundred percent likely that the Supreme Court would take the case.

TDN: What are the implications (either way) from the pending Fifth Circuit ruling for those jurisdictions currently operating outside of HISA's remit, like Louisiana and West Virginia?

LF: If the Fifth Circuit rules the same way that the Sixth Circuit did and finds that HISA as amended is now constitutional, that would mean that the lower court injunctions against the enforcement of HISA in certain states would most likely be dissolved and would go away.

If the Fifth Circuit rules that even the amendments to HISA are not sufficient to make it constitutional, that would mean the injunctions against enforcing HISA in certain states would remain in effect until the Supreme Court resolves the differences of opinions between the federal circuit courts.

TDN: Does this case hold other implications at the Supreme Court level for critics of the federal administrative state?

LF: In the current term of the Supreme Court, they've just taken several cases that raise challenges to decades old, well-established administrative law precedents.

There seems to be a lot of interest in the current U.S. Supreme Court of turning administrative law on its head and reining in the authority of the federal regulatory agencies in various ways. The non-delegation doctrines that are at the heart of the challenges to HISA have not yet been the areas of administrative law that the Supreme Court seems focused on upending of changing.

But they might—if they completely change the areas of administrative law they've agreed to consider this year—maybe next year say, 'okay, we got rid of the Chevron deference doctrine, we got rid of certain other things. Now let's go after the non-delegation doctrine.'

It's a long way of saying the current U.S. Supreme Court is showing great interest in rethinking decades of rules about the authority of federal regulatory agencies.

TDN: Could this focus of the Supreme Court have any bearing on the way in which the Fifth Circuit rules?

LF: I don't think judges rule in a particular way on a case strategically in order just to get it to go to Supreme Court. I think judges rule on cases based on what they think the law is.

The Fifth Circuit is the most dominated right now of all the circuits by judges who were appointed by the Trump administration with the imprimatur of the Federalist Society, which has long had as its goal to get judges on the appellate federal courts that want to rein in the regulatory state.

The Fifth Circuit is known as the most conservative circuit in terms of what it might mean these days to be a conservative, in the legal sense. Being skeptical of giving broad discretionary authority to make rules to agencies as opposed to congress is one of the aim of being a legal conservative.

As I've told you in previous conversations, there were clearly lawyers strategizing by the opponents of HISA about what states and therefore what federal circuits they filed their challenges in.

They filed them in parts of the country that go to circuit courts that they considered tilting conservative. They didn't file them in areas of the country like New York or Chicago where they think the circuit courts are not considered to be tilted conservative.

TDN: What are the implications from the pending Fifth Circuit ruling for the other HISA-related suits? 

LF: Well, neither the Sixth Circuit ruling nor the Fifth Circuit ruling would be binding precedent on the eighth circuit. They're just persuasive views.

If you're the eighth circuit and you've got two other circuits who agree on the constitutionality of the statute, then reading the tea leaves, that makes it more likely the eighth circuit would also agree.

If you're the eighth circuit and you've got two other federal circuits that have completely different views, you might just kind of sit on the case for a while and wait to see if the Supreme Court takes up the matter and let the Supreme Court decide on its constitutionality.

TDN: Which gets back to your earlier point—a lot rests on this Fifth Circuit ruling.

LF: Yes. Whether the Fifth Circuit will rule the same as the Sixth or differently from the Sixth is basically everything. What happens next is going to rest completely on that.

TDN: Do you see the pending Fifth Circuit ruling having any bearing on the relative success or failure of the proposed federal legislation to repeal HISA and replace it with a voluntary interstate compact to govern the nation's Thoroughbred, Standardbred, and Quarter Horse racing?

LF: That's an interesting question. Interesting, because right now we basically don't have a functioning congress. Who knows how long it will be before we have a functioning congress.

Right now, no federal legislation is going anywhere. But I guess my personal view is that there won't be any strong majority push in congress to come up with something different unless the U.S. Supreme Court says HISA is unconstitutional.

The post Q and A With Lucinda Finley: A Lot Rests on Pending Fifth Circuit HISA Ruling appeared first on TDN | Thoroughbred Daily News | Horse Racing News, Results and Video | Thoroughbred Breeding and Auctions.

Source of original post

The mount fee schedule calls for a minimum fee of $125 at all Kentucky racetracks, including Churchill Downs, Keeneland, Ellis Park, Kentucky Downs and Turfway Park. This agreement also provides for $500 minimum fee in races with purses of $1 million or more.

“On behalf of our members who ride in Kentucky, I would like to thank the Kentucky HBPA and the Kentucky Thoroughbred Association for working with the Guild to reach this agreement,” said Terry Meyocks, President and CEO of Jockeys' Guild. “Special thanks to Senator Damon Thayer, for his assistance in reaching this agreement. Without his support, it would not have been accomplished.”

The Kentucky Horse Racing Commission's Rules Committee passed Oct. 4 a unanimous motion recommending this scale to the full commission for consideration and anticipated approval. Once approved, the proposed amendment to the administrative regulation will be filed with the Legislative Research Commission to follow the rule making process and allow for written and public comment. The agreements with the Kentucky HBPA and the KTA will remain in effect until the regulation has been formally adopted, which will likely be next year.

“I was pleased to advocate for a pay increase for the jockeys,” said Sen. Damon Thayer, Majority Leader of the Kentucky Senate. “Those who risk their lives every day at our tracks should be paid a fee commensurate with Kentucky's position of having the top purses in North America. In particular, I would like to thank trainer Dale Romans as a leader in the KHBPA, for facilitating in reaching the agreement and to Commissioner Charlie O'Connor for his role at the Commission in moving forward with the adoption of the new regulation.”

The post Mount Fee Increase For All Kentucky Racetracks appeared first on TDN | Thoroughbred Daily News | Horse Racing News, Results and Video | Thoroughbred Breeding and Auctions.

Source of original post

The purpose of the HISA Authority's Sept. 13 press conference was to go public with a months-in-the-making report on 12 horse deaths at Churchill Downs this past spring, and also for the Authority unveil a wide-ranging “strategic response plan” to predict and halt catastrophes before they occur. According to the report, which also listed numerous other safety proposals, the goal of entering into agreements with Thoroughbred auction houses would be “to more effectively align and coordinate our respective anti-doping and medication control [ADMC] programs.”

The purpose of the NHBPA's Sept. 15 legal filing, by contrast, was to let the court know that as the plaintiffs/appellants in a two-year-old lawsuit that is trying to derail HISA based on alleged constitutional violations, the NHBPA and 12 of its affiliates believed that by entering into such negotiations with sales companies, “the Authority has announced its intention to add another line to the already long list of 20-plus examples of the Authority writing the rules for the industry without going through the rulemaking process.”

The two-page letter written by the NHBPA's attorney, Daniel Suhr, prefaced its legal criticisms of the Authority's discussions with sales companies by first stating that, “The NHBPA Appellants appreciate the policy goal to ensure effective ADMC standards that include breeders: as the advocate for owners of horses, they support measures that ensure full and accurate information from breeders for buyers.

“But as a legal matter, two things are obvious from the announcement,” the NHBPA letter continued. “First, one section of the industry that is included in the scope of the Act is receiving preferential treatment-the breeders get to negotiate their rules through voluntary agreements while other sectors like trainers and racetracks have rules imposed upon them by Authority fiat.

“And second, once again the Authority is engaged in regulatory activity outside the rulemaking process. When the Authority enters into a 'voluntary agreement' with a breeding company, it is not required to publish or publicize the text of that agreement (or provide it if requested through FOIA), receive and consider public comment (including feedback from other affected equine constituencies), or run it by the Federal Trade Commission [FTC],” the NHBPA letter stated.

The allegations by the NHBPA were filed with oral arguments in the highly anticipated Fifth Circuit appeals case coming up soon, on Oct. 4.

A lower federal court already ruled back on May 4 that the rewritten HISA law that went into effect Dec. 29, 2022, is indeed constitutional because it fixes the problems the Fifth Circuit had identified in an earlier version of the law. The NHBPA plaintiffs are arguing for another reversal.

The points of law raised by the NHBPA's Sept. 15 letter, however, won't be considered by the court in their current format.

That's because the letter did not meet the standard for the type of filing that notifies the court of pertinent and significant findings after a party's brief has been filed, according to a docket entry made by the court clerk on Sept. 15. “Therefore, we are taking no action on this letter,” the clerk stated.

If the NHBPA wants its comments on the issue to be considered, the clerk's notation continued,  “A motion seeking leave to file a supplemental brief is required.”

Regardless of its status, the letter was made public within the docket once the court refused to take action on it, and its contents are important to the broader world of horse racing because the objections over the sales company discussions underscore both the ongoing and newly developing rifts between the NHBPA plaintiffs and the HISA and FTC defendants.

A chief point of contention between the two parties is that the Authority has stated that it will negotiate (rather than propose and implement) ADMC rules upon sales companies because its interpretation of the law is that some young horses sold as auction aren't yet “covered horses” under HISA.

Speaking at the Sept. 13 press conference, Lisa Lazarus, HISA's chief executive officer, explained that “a horse becomes a HISA [covered] horse after it's had its first public workout, first timed workout. So some of the 2-year-old sales would certainly fall under HISA's purview. The weanlings and yearlings wouldn't.”

But, Lazarus added last week, “I think we're at the point where if HISA leads the way that we should, and the way that we intend to, that we'll be able to motivate the industry to come under one kind of comprehensive, understandable, kind of ADMC approach.”

The NHBPA, on the other hand, wrote in a footnote to its Sept. 15 letter that under its reading of HISA, it believes breeders do qualify as “covered persons,” and that breeders as a group are included “among equine constituencies.” Thus, the plaintiffs' argument goes, it's allegedly not fair for one sector of covered persons to have a say in negotiating rules while other covered persons don't.

Asked on Sept. 18 if the HISA Authority would like to comment on the NHBPA's assertions in the letter, an Authority spokesperson wrote in an email that, “The NHBPA overlooks the fact that Congress decided that Thoroughbred horses are not covered horses under the Act until their 'first timed and reported workout.' Therefore, it is necessary for the sales companies to voluntarily agree so that we could effectively align and coordinate our respective ADMC programs throughout the lifetime of a horse.”

The post HBPA: Negotiations Between HISA And Sales Companies Equate To ‘Preferential Treatment’ For Breeders appeared first on TDN | Thoroughbred Daily News | Horse Racing News, Results and Video | Thoroughbred Breeding and Auctions.

Source of original post

However, U.S. District Court (Western District of Louisiana) Chief Judge Terry Doughty wrote in his Sept. 14 ruling that, “This Order shall not be considered a dismissal or disposition of this matter,” and that he was halting the case while the Fifth Circuit decision played out “without prejudice to the right of the parties to reopen the proceedings.”

This means the plaintiffs (the two states are joined by the Louisiana racing commission, the Louisiana HBPA, the Louisiana Thoroughbred Breeders Association, West Virginia's racing commission, and five individuals regulated as “covered persons” under HISA) and the defendants (the HISA Authority, the Federal Trade Commission [FTC], plus overseers of both entities) must now await the decision–likely to be issued months from now–that will result from the Fifth Circuit oral arguments scheduled Oct. 4.

In 2 1/2 weeks, the National HBPA and 12 of its affiliates will be trying to prove claims that the 2022 rewrite of the HISA law remains “patently unconstitutional,” and that the Authority overseeing the sport “is basically a private police department” whose sweeping powers equate to “oligarchic tyranny.”

The HISA Authority and the FTC will go into those same arguments backed by a lower court's opinion issued in May that ruled HISA is indeed constitutional, because “Congress cured the unconstitutional aspects of HISA's original approach.”

It's also on the judicial record that the U.S. Court of Appeals for the Sixth Circuit upheld the constitutionality of HISA back in March.

One day prior to Judge Doughty's ruling, Magistrate Judge David Ayo wrote in a report that recommended staying the Louisiana case that the multiple, overlapping anti-HISA lawsuits currently swirling in the court system are clogging federal dockets.

“After an exhaustive review of the landscape of suits challenging the Act, this Court concludes that [an amended complaint the plaintiffs had filed] is the result of deliberate strategy” that equated to “an abuse of procedure and an impermissible use of judicial resources,” Judge Ayo wrote in his Sept. 13 report.

The original lawsuit in this case was filed June 29, 2022, alleging that HISA violates the Fourth, Seventh and Tenth Amendments to the U.S. Constitution, plus the Administrative Procedure Act, which governs the process by which federal agencies develop and issue regulations.

The post Judge Halts Anti-HISA Suit in Louisiana Pending Outcome of HBPA Case in U.S. Appeals Court appeared first on TDN | Thoroughbred Daily News | Horse Racing News, Results and Video | Thoroughbred Breeding and Auctions.

Source of original post

“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.

The post HBPA: ‘Best Of Both Worlds’ For HISA Is ‘Worst Of All Worlds’ For Horsemen appeared first on TDN | Thoroughbred Daily News | Horse Racing News, Results and Video | Thoroughbred Breeding and Auctions.

Source of original post

The total fee assessments for the states and racetracks come out to $78.5 million, but available credits potentially bring that number down to $59.8 million.

HISA's 2023 total budget was initially set at $72.5 million. That number was subsequently revised down to $66.4 million earlier this year.

The proposed 2024 budget was issued on Aug. 17, but the opportunity to publicly comment on it ended on Thursday, Aug. 24.

While the proposed budget is listed as a press release on the HISA website, it was not sent out in wide circulation via email like other HISA press releases. On Aug. 9, however, the Authority included in an email on 2022 tax filings a warning that the budget would be released “in the coming days.”

The proposed budget is broken down among the following HISA-related departments: the racetrack safety program, the Anti-Doping and Medication Control (ADMC) program, technology, and administration costs.

Among the big-ticket items, $21.2 million has been allocated for lab testing and $9.5 million for “professional services.”

The latter is a broad category denoting things like “external support for critical functions ranging from arbitration fees to companies that support our IT infrastructure and man our help desk,” explained HISA spokesperson Mandy Minger.

Some $3.6 million is set aside for legal fees, including the cost of lawsuits.

Total revenues from fines related to the racetrack safety and ADMC programs, along with other sources of income like those from lab testing, come to $3.6 million.

According to Minger, these revenues will be used to reduce the net expenses, “and therefore reduce the 2024 assessments.”

Nearly $23 million of HIWU's $38.7 million operating budget goes toward “collection costs,” with $6.7 million going toward salaries.

The total price tag of operating the entire ADMC program–which includes that for HIWU, as well as drug testing and adjudication cost—comes to $59.5 million.

The Authority's loan repayments total $1.25 million.

In a May Q&A, HISA CEO Lisa Lazarus told the TDN that The Jockey Club, the Breeders' Cup and the NTRA had all provided loans to the program, and that they were “pretty much no interest” loans designed to cover short-term operational costs.

While the proposed budget for next year is more detailed than previous iterations, it is still lacking in granular line-item details explaining exactly how the money is being used, said National Horsemen's Benevolent and Protective Association (HBPA) CEO Eric Hamelback.

“We are not surprised by the increase [from 2022 totals], but here we are once again not able to truly assess the budget due to the lack of transparency in the breakdown of the figures,” said Hamelback.

Individual racing commissions can choose to cover the assessed fee for the state–broadly speaking, a figure calculated on a formula based on total starts and purses.

Where commissions enter into a voluntary agreement with the Authority for existing personnel to conduct tasks like sample collection, conducting investigations, and adjudicating violations, the state is privy to a credit on its total assessment.

According to the proposed budget for next year, the total to be assessed comes to $78.5 million, with $18.7 million available in industry credits.

The states that decline to cover these financial assessments pass the burden of responsibility onto the racetracks in the state.

Yet to be issued, the 2024 fee assessments for the states and racetracks must be made public by Nov. 1 this year.

“We anticipate that the assessment will be released in October,” said Minger, who added that the same formula to assess these fees will be used again.

The current state and racetrack assessments are a bone of contention among various racing jurisdictions, however.

According to Hamelback, several states are “looking at the possibilities” for next year “of not sending their signal out in order to maintain racing” because of the financial burden posed by these fees.

Such a move would mirror the state of Texas, which has maintained since the advent of HISA a blackout on sending its simulcasting signal out of state in order to operate outside of the federal program's jurisdiction.

Hamelback added, however, he was not positioned to publicly name the states considering this option.

The post HISA Proposes $80.9 Million 2024 Budget appeared first on TDN | Thoroughbred Daily News | Horse Racing News, Results and Video | Thoroughbred Breeding and Auctions.

Source of original post

The average daily purses will top $900,000 when the season starts on Dec. 8. Purses for allowance races will be $140,000–$145,000, maiden special weights will be $115,000 and the minimum purse on any race will be $30,000.

“Let me put this in perspective,” said Oaklawn President Louis Cella. “Our season purses will be three times greater than they were just 10 years ago. And we've made sure it's been across all levels of our racing product.”

Cella credits the record purses to the racing-gaming model the track has developed over the last 20 years and to a massive $100 million expansion project that was recently completed.

“We are proving that racing and gaming not only can co-exist, but they can actually enhance each other,” Cella added. “And we're really seeing it now that we've finished our luxury trackside hotel, events center and spa.”

In conjunction with record purses, Oaklawn and the Arkansas HBPA will again offer participation bonuses to owners and trainers. Owners will receive $200 for every starter during the season. Trainers will receive $250 for any starter that does not finish first, second or third.

“We worked with Oaklawn to launch this program a year ago,” said HBPA President Bill Walmsley. “And I've heard nothing but positive comments from horsemen.”

The post Oaklawn’s Purse Growth Continues appeared first on TDN | Thoroughbred Daily News | Horse Racing News, Results and Video | Thoroughbred Breeding and Auctions.

Source of original post

Rumor has it that Mike Repole said he was going to get out of the business if things didn't change. Well, I can see how Mr. Repole could feel that way; he's had some real kicks in the behind this year. But the racing industry needs more people like Mike Repole. He goes to the sales, buys nice horses, goes to the races, and takes his chances. He spends more than most and has Todd Pletcher for a trainer (there is no better), and so his chances are better than most.

Everything has changed so fast this year. All of a sudden, we have this new entity (HISA) that has taken complete control of our industry. They basically have the power to shut anyone down at any time. I don't like it and neither does anyone else trying to make a living with racehorses, especially those that are “hands on”. We have people controlling our lives and our livelihoods that don't know anything about us or our horses. Perfect example of the tail wagging the dog.

This is America, or what's left of it. Blaming the cheaters (1%} for our problems is a load of crap. They are essentially using the media to slander individuals, our livelihoods, and our whole sport  with no recourse, even if they're wrong. The damage is done by that point, which is their goal. This is a gambling game. Our purse money has always come from some form of gambling. The best way to save this industry is to fill those gates; our racetracks needs to realize this. Our economy is such that it is going to hit the horse business sooner or later. During the Great Depression, racetracks were one of the few businesses that thrived. Every time a track closes, be it large or small, it weakens us all. The people trying to control us act like they couldn't care less. This won't do.

Dr. Allday, one of the best racetrack vets in the world, says a horse can run. But a vet that has been out of school for a very short amount of time says it cannot. They, of course, listen to the least qualified person which may have cost us another Triple Crown winner. Come on, get real. Where is the reality in our sport anymore? PETA does not control us. Give into that bunch… well, don't get me started.

The small breeder, the small trainer, the small owner… they are the backbone of this industry and don't you ever forget it. Get down to where the rubber meets the road. Support the HBPA–the people that support you. Tracks, support your horseman. Our business is not run by PETA or any other power group. No more tail wagging the dog. I love this business and its people.

The post Letter To The Editor: An Open Letter To The Horsemen appeared first on TDN | Thoroughbred Daily News | Horse Racing News, Results and Video | Thoroughbred Breeding and Auctions.

Source of original post

As the appellants in a lawsuit that has persisted in the federal court system for more than 27 months, the HBPA plaintiffs were allowed to file the first briefing in a landmark case for the Thoroughbred industry that has been put on an expedited schedule by the Fifth Circuit.

The defendants, who are personnel from the Federal Trade Commission (FTC) and the HISA Authority, have 30 days to craft a reply. They will make their filing knowing that a lower court in Texas has already ruled that an amended version of HISA is constitutionally compliant because it fixed defects that the Fifth Circuit had previously identified. The HISA law has also been upheld as constitutional in a separate lawsuit initiated by different plaintiffs that got validated on appeal to the Sixth Circuit.

In a 72-page brief filed July 5, the HBPA appellants laid out an argument based on the premise that the rewritten HISA statute that got signed into law late in 2022 still doesn't pass the constitutional sniff test.

“This Court has already struck down HISA once before,” the HBPA filing stated. “Then Congress tweaked the law in one respect, giving the FTC a modicum of additional power over the original design. Though it is understandable to desire to applaud 'a productive dialogue' between the branches, this Court's job is not to reward Congress for passing a marginally less unconstitutional law by declaring it constitutional. Laws do not get passing grades for improved effort. Nor is constitutional analysis like horseshoes or hand grenades, where close–or even just slightly closer–is good enough.”

The HBPA filing continued: “This Court's job is to again tell Congress–'No.'”

Central to the HBPA's case is the principle in administrative law that Congress cannot delegate its legislative powers to other entities. In their brief, the horsemen argue that the HISA Authority is a private entity subject to that “private nondelegation” doctrine, and that it is wrong to intentionally grant it powers that evade the safeguards of constitutional design.

“An alternative way to think about private nondelegation is not to ask about the quantity of supervision authorized, but the quality of the powers delegated. This question is not how much surveillance and authority the FTC has, but what type of power the Authority wields,” the HBPA filing stated.

“HISA is directly contrary to the historical understanding of private delegation. Ultimately the corporation is named the Horseracing Integrity and Safety Authority, and not Advisors or Administrators, because its purpose is not to advise the FTC or perform ministerial tasks. Its purpose is to exercise sovereign national authority [and] giving such governmental authority to a private corporation was and remains 'delegation in its most obnoxious form.'”

The HBPA filing put it this way: “The Authority establishes the programs, drafts the rules, makes policy decisions, exercises enforcement discretion, investigates individuals, seizes evidence, prosecutes industry participants, sits in judgment on them, issues sanctions, decides how much it wants to spend, and then decides how much it will take in taxes to fund that spending.

“It does all of this without appointment of its board members by the president, confirmation of those board members by the Senate, appropriation of its funds or authorization of its fees by Congress, review of its investigatory requests by a federal magistrate, or transparency to the industry and the public through accountability laws like the Freedom of Information Act, Federal Advisory Committees Act, or Government in the Sunshine Act.”

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 more than a year later, on March 31, 2022.

The HBPA plaintiffs then appealed, leading to a 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 signed into law on Dec. 29, 2022.

On May 4, 2023, the lower court deemed that the new version of HISA was constitutional. The HBPA plaintiffs swiftly filed another appeal back to the Fifth Circuit, which is where the case stands now.

The HBPA filing stated that, “this Court should approach the amended statute with a clean slate and hold it up to the high bar set for a delegation of government power to a private actor, as enunciated in its prior opinion. If this Court does so, it will see that the act again fails. Even as amended, the statute does not give the FTC pervasive surveillance and control over the HISA Authority.”

At a different point in the filing, the HBPA took umbrage with HISA's funding mechanisms.

“The powers to set taxes and spend tax funds are legislative powers. The Authority has the power to tax–it is empowered by HISA to set a mandatory assessment that either states pay, or if states decline to pay, then covered persons must pay directly. This is a tax….These funds are not voluntary or charitable contributions from covered persons and states–these are mandatory, obligatory fees levied by law. Failure to pay them can result in fines and suspension from racing. Once these funds are collected, HISA allows the Authority to spend them without any FTC oversight.”

Enforcement is also constitutionally problematic for the HBPA.

“The Authority has the power to search and inspect 'offices, racetrack facilities, other places of business, books, records, and personal property of covered persons that are used in the care, treatment, training, and racing of covered horses,' to issue subpoenas, to compel truthful and complete answers to inquiries, to undertake urine and blood tests without advance notice, and to exercise 'other investigatory powers of the nature and scope exercised by State racing commissions,' which the Authority has apparently defined to include the power to seize evidence….

“By contrast,” the filing continued, “if the FTC wanted to conduct a search or seize evidence, it would need a warrant from a magistrate. For the Authority to conduct a search or seize evidence, it doesn't even have to let the FTC know, little less secure the advance approval of a federal magistrate. This is an unconstitutional mutation of executive power. The Authority also has the power to hold administrative hearings, weigh evidence, decide guilt, and issue sanctions. These are also executive powers…

“As a result, under the terms of the statute, horsemen are investigated and subpoenaed and their property is seized with zero pre-clearance from a federal official, little less an independent magistrate,” the filing stated.

The HISA and FTC defendants now have the opportunity to file their own brief with the Fifth Circuit Court by Aug. 4.

The post HBPA On HISA: This Court’s Job Is To Again Tell Congress ‘No’ appeared first on TDN | Thoroughbred Daily News | Horse Racing News, Results and Video | Thoroughbred Breeding and Auctions.

Source of original post

The event will feature eight races totaling $1 million in base purses, headlined by the $200,000 Claiming Crown Jewel.

Eric Hamelback, CEO of the National HBPA said, “The Claiming Crown was designed to celebrate our hard-knocking, unsung heroes of the turf. What better place–especially for our 25th running–than New Orleans?”

The deadline to make horses eligible for the Claiming Crown is November 18, with entries to be taken November 25. Click here for Eligibility Request Forms.

The post Claiming Crown Returns To Fair Grounds appeared first on TDN | Thoroughbred Daily News | Horse Racing News, Results and Video | Thoroughbred Breeding and Auctions.

Source of original post