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Research Proposals on Lasix will be Accepted by HISA Sept. 1

The Horseracing Integrity and Safety Authority called for potential researchers to prepare research proposals on the administration of furosemide, still commonly called Lasix in racing, to Thoroughbred racehorses during the 48-hour period before the start of a race, the organization said in a release Thursday evening. The call for proposals is expected to be released Sept. 1.

As the Authority was created by the Horseracing Integrity and Safety Act (HISA) of 2020, it is mandated by Congress to include at least one study on the use of furosemide. Included in the study is the effect of Lasix on equine health and the integrity of competition while using the medication.

Study conclusions will be used to guide the Authority's Furosemide Advisory Committee (FAC) in its recommendations to the Authority's Board. In evaluating applications, the FAC will pay particular attention to the impact of the proposed work as it applies to racing in North America.

Any questions should be directed to feedback@hisaus.org and titled “HISA research.”

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Wong Provisionally Suspended After B Sample Confirmation

Trainer Jonathan Wong has been provisionally suspended after being alerted late Wednesday that the B Sample confirmed the presence of Metformin in a post-race test taken from his trainee, Heaven and Earth (Gormley).

Heaven and Earth broke her maiden at Indiana Grand June 1 but subsequently tested positive for the prescription drug Metformin, a type 2 diabetes treatment classified as a banned substance by the Horseracing Integrity and Safety Act (HISA).

During a conference call Thursday morning before representatives from the Horseracing Integrity and Welfare Unit (HIWU) and a judge, a full hearing on the merits of the case was scheduled for Sept. 25, said Wong.

“There's zero sense of urgency,” said Wong. “I've been put out of work since July 2 because they hadn't adjusted the rules until 27 days later. But by then, I've lost my horses. I haven't made a paycheck for a month. And now it's going to be going on three months.”

Technically, this is the second time Wong has been provisionally suspended as the case has unfolded.

As a matter of protocol at that time, HIWU initially provisionally suspended Wong at the beginning of June when the A sample returned a positive finding for Metformin.

Late last month, the HISA Authority announced that it had modified the rules surrounding provisional suspensions. Under the new provisions, responsible parties who request B Sample confirmation following a positive test for a banned substance won't face any potential provisional suspension until the B sample findings are returned.

“If the B Sample confirms the A Sample, the Responsible Person shall be Provisionally Suspended upon Notification of the B Sample confirmation,” the new rules state.

Though that announcement technically permitted Wong to return to training while the B sample was being processed, he said that his owners did not wish to transfer the horses back with the B Sample results expected imminently.

“If I would have gotten notified on this positive today, I would still be allowed to train and go on as normal until my B Sample came back,” he said. “But I wasn't afforded that opportunity.”

Wong–who potentially faces up to a two-year suspension and a $25,000 fine–voiced frustration with other aspects of the way his case has been handled. This includes, he said, how the B samples of blood and urine were sent separately for testing.

“They were separated by eight days, which according to everybody I've spoken with is not how it's supposed to be done,” Wong said.

“If this would have happened a few weeks prior, this would have been a 15-day penalty,” said Wong, alluding to how trainer Wesley Ward served a 15-day suspension for a Metformin positive in a July 15, 2022 race at Monmouth. “Now they're threatening me with up to two years.”

As such, Wong said that he's considering his future in the sport, even if the full merits hearing skews in his favor. “I don't know, when all this is taken care of, if I want to go back to training,” Wong said.

“It brings a lot of stuff into perspective,” he said. “I've a wife, a 13-year-old, a 5-year-old, a 3-year-old and a 10-month-old. I miss so much of their life by putting work first and them second, for it all to be literally thrown away in a day over something I didn't even do.”

Despite these frustrations, Wong said that the concept of HISA is necessary for the sport.

“First and foremost, I'd like to give them credit for making the changes [to the provisional suspension provisions]. I applaud them for listening to people's complaints and suggestions, adapting and working to it,” Wong said.

“I totally have zero problems with HISA. I think it's something that's much needed. I just think it needs to be tweaked. It's a learning process. They're learning. Owners, trainers, jockeys, we're all learning as we go along with this,” said Wong.

“But when you're completely not awarded any opportunities from day one until your hearing, that's pretty much being charged as guilty until proven innocent,” Wong added. “I feel like I've been locked up and had the key thrown away.”

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Vets: HISA Puts Them at ‘Greater Risk than Other Covered Persons’

The North American Association of Racetrack Veterinarians (NAARV) is arguing for the United States Court of Appeals for the Fifth Circuit to overturn the Horseracing Integrity and Safety Act (HISA) on constitutional grounds because the law allegedly “places the racetrack veterinarians at a greater risk than other covered persons” from a due process standpoint.

Chief among the assertions made by the NAARV in a 51-page “friend of the court” brief filed July 14 are that “initial findings of wrongdoing by a member of NAARV, pursuant to HISA, result in a report to the Federal Trade Commission (FTC) and, therefore, a federal violation. A federal violation would inevitably result in the loss of not only the NAARV member's track license, but also the loss of the member's professional license to practice veterinarian medicine.”

In addition, the NAARV alleged that HISA creates a “financial barrier to due process review.”

That's because, according to the NAARV's filing, the ultimate authority, the FTC, isn't obligated to accept any covered person's request for review of a HISA ruling against them.

And if such a request for review is denied, that covered person's only right to appeal is to bring the matter all the way to a United States Court of Appeals, the NAARV stated. There are only 12 such courts in the country, divided regionally.

“Logistically, this is more challenging,” the NAARV filing stated. “Take, for example, a covered person who has an alleged violation in Texas. He or she must now pursue an appeal before the Fifth U.S. Circuit Court of Appeals in New Orleans, Louisiana.

“A person who has allegedly committed a medication violation in Puerto Rico, if he or she decide to appeal, must pursue that appeal before the First U.S. Circuit Court of Appeals in Boston,” the brief continued.

Beyond potential travel burdens, the NAARV pointed out, bringing any legal action to that level of the federal court system isn't cheap.

“The estimated legal cost for a trip to the U.S. Court of Appeals is in excess of $25,000,” the NAARV stated.

“It creates a cost or premium for substantive due process rights that is unobtainable for most NAARV members and thus, results in a denial of their due process rights,” the NAARV stated.

At a different point in the filing, the NAARV explained that veterinarians accused of wrongdoing would no longer be “in a position to 'take the deal' on a minimum violation but instead forced to defend their position to maintain their license and their livelihood.”

The NAARV continued: “Prior to the implementation of HISA, NAARV members were able to negotiate a state violation without necessarily risking their general veterinary license. Under HISA, they are forced to do so in a system [that] deprives them of both substantive and procedural due process.”

The NAARV's assertions were made in support of the appeal led by the National Horsemen's Benevolent and Protective Association (NHBPA) and 12 of its affiliates.

The defendants in the underlying case, which has lingered in the federal court system for 28 months, are personnel from the FTC and the HISA Authority.

The HISA Authority and FTC have an Aug. 4 deadline to file their own briefs with the Fifth Circuit Court.

Oral arguments in the case are tentatively scheduled for the first week in October.

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FTC: Latest Anti-HISA Suit Doesn’t Come ‘Within a Furlong’ of Demonstrating Harms

The Arkansas-based lawsuit filed six weeks ago that is the most recent among five separate federal complaints attempting to derail the Horseracing Integrity and Safety Act (HISA) via alleged constitutionality claims was broadly rebuffed Monday in separate legal filings by the defendants in the case, who are executives with the HISA Authority and the Federal Trade Commission (FTC).

The plaintiffs, led by Bill Walmsley, president of the Arkansas Horsemen's Benevolent and Protective Association (HBPA), and Jon Moss, the executive director of the Iowa HBPA, had asked a judge in United States District Court (Eastern District of Arkansas, Northern Division) on Apr. 6 to declare HISA unlawful and to impose an injunction prohibiting the defendants from enforcing the Anti-Doping and Medication Control (ADMC) rules scheduled to go into effect May 22.

The HISA Authority's opposition brief stated that the plaintiffs in this case, much like those in the other four cases currently swirling in the federal court system, represent only “a faction of the industry long opposed to any change” who continue to “search for a favorable forum” by essentially making similar arguments in front of different judges.

And, the HISA Authority's filing pointed out, both Walmsley and Moss are already involved as parties who have taken various legal actions in three of the other four anti-HISA cases.

“Apparently discontent with those courts' rulings, the Iowa HBPA, Walmsley, and Moss now seek the same extraordinary relief here,” the HISA Authority's May 15 filing stated.

The HBPA-affiliated plaintiffs wrote in their complaint last month that HISA “barely pretends to comply with the Constitution's separation of powers. The Act allows a private corporation to issue binding rules with no guiding principle. The FTC's ostensible oversight serves as a mere mirage.”

The HISA Authority saw the situation differently in its filing.

“The vast majority of industry participants and horseracing states have welcomed the uniform national standards, which took effect on July 1, 2022. Two [presidential] administrations have now supported the law and two bipartisan Congresses have embraced it–including through a statutory amendment that reinforced the Act's constitutionality in December 2022,” the HISA Authority's filing stated.

“Plaintiffs come nowhere near the showing required for a court to dismantle this critical federal regulatory program. Most notably, Plaintiffs cannot demonstrate a likelihood of success on the merits: All four federal judges that have considered Congress's recent amendment to HISA have concluded that the Act is constitutionally sound,” the HISA Authority's filing stated.

“Plaintiffs next rely on a meritless public nondelegation claim that the challengers in the other cases wisely abandoned, or did not consider worth [pursuing], in light of the clear intelligible principles Congress provided,” the HISA Authority's filing stated.

“And Plaintiffs' final claim under the Appointments Clause is contradicted by the undisputed fact that the Authority is not a governmental entity [and] by the decisions of the two federal courts that have already denied the same Article II claim,” the HISA Authority's filing continued.

“None of the other preliminary injunction factors favor Plaintiffs, either. Plaintiffs fail to show irreparable harm: They have been subject to HISA's racetrack safety rules for over 10 months and to similar anti-doping rules under State law for years; purses in Arkansas and Iowa have surged; and the racing season in Arkansas has now ended,” the HISA Authority's filing stated.

“The balance of harms and the public interest also weigh heavily against disrupting a federal regulatory scheme that Congress has mandated (twice) and that has enjoyed substantial compliance already,” the HISA Authority's filing stated. “This Court should deny Plaintiffs' motion for a preliminary injunction.”

The FTC's May 15 filing put it this way: “[The plaintiffs] do not come within a furlong of demonstrating, with evidence, that any purported 'harm is certain and great and of such imminence that there is a clear and present need for equitable relief.'”

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