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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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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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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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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What stood out was that neither the HISA Authority nor the FTC shied from trying to link the NHBPA's desire to maintain the “status quo” to the grim headlines that have dominated the sport over the past week.

“Seven horses died in the lead up to last weekend's [GI] Kentucky Derby,” the FTC's opening line in the May 11 filing stated. “Reporters, not mincing words, observed that the accidents 'overwhelmed' the [D]erby with 'the stench of death.' Congress passed HISA in 2020 to protect horses and prevent these kinds of tragedies, but the Horsemen Plaintiffs have repeatedly challenged the statute and the FTC's implementing rules.”

Drawing similarly from recent adverse events, the HISA Authority's response referenced a May 9 New York Times story that broke the news of Forte's failed New York State Gaming Commission drug test that ran under the sub-headline, “Horse racing is again caught up in a controversy.”

The HISA Authority alleged that, “Plaintiffs' request for 'state regulation' to forestall the federal regulatory scheme Congress mandated would plunge the industry back into the 'existential crisis' of inconsistent regulation [and] recent headlines provide fresh reminders…”

United States District Court Judge James Wesley Hendrix of the Northern District of Texas (Lubbock Division) will now have to weigh those assertions against those filed by the NHBPA in its May 5 request for the ADMC injunction.

The lawsuit initiated by the HBPA to try and derail HISA on alleged anti-constitutionality grounds is now past the two-year mark. The thrice-delayed ADMC is on target to begin in 10 days.

On Mar. 15, 2021, the NHBPA and 12 of its affiliates sued the FTC and HISA Authority personnel, seeking to permanently enjoin the defendants from implementing HISA, bringing claims under the private-nondelegation doctrine, public nondelegation doctrine, Appointments Clause, and the Due Process Clause.

Judge Hendrix dismissed that suit on Mar. 31, 2022. But the NHBPA plaintiffs appealed, leading to a Fifth Circuit Court reversal on Nov. 18, 2022, that remanded the case back to the Lubbock Division. In the interim, an amended version of HISA was signed into law Dec. 29, 2022. That fix was designed to make HISA compliant with the constitutional defects the Fifth Circuit had identified.

On May 6, 2023, Hendrix validated the newer version of HISA as constitutional. Now the NHBPA is planning another appeal back to the Fifth Circuit, and it wants the ADMC's rollout stopped while that process plays out.

The May 5 filing by the NHBPA explained the reasoning behind its request:

“An injunction is necessary because the industry cannot endure 'seismic change' in the short term that is undone shortly thereafter. The courts should not put the industry on a roller-coaster where the ADMC rules are in effect from May 22 to [some future date when] they go out of effect again if the Fifth Circuit finds the amended law unconstitutional.”

Hendrix, in a May 8 order, told the HISA Authority and the FTC that they had to reply to the NHBPA's motion for an injunction within 72 hours, signaling that he did not plan to let this decision linger.

“Plaintiffs are neither entitled to that relief nor to any other remedy,” the FTC's May 11 filing stated. “And the equities–both equine and otherwise–point decidedly against Plaintiffs.”

The FTC alleged that it “makes no difference that Plaintiffs previously prevailed on their nondelegation challenge before Congress amended HISA. And they do not argue about their chance of success on any of their other theories…. Because Plaintiffs stand almost no chance of success, their motion for a stay should be denied on that basis alone.”

The HISA Authority's filing put it this way: “Congress, the Executive, and both federal courts [have] come to the same correct conclusion: the Act is now constitutional. The HBPA Plaintiffs nevertheless ask for the extraordinary relief of an emergency nationwide injunction pending appeal…

“While Plaintiffs' speculation about irreparable harm from the ADMC rules is at best conflicted, an injunction of the ADMC rules would inflict certain injury on Defendants and the public interest,” the HISA Authority's filing stated.

“These final two factors weigh heavily against halting a federal regulatory scheme that has long been planned and that enjoyed substantial compliance in its brief initial rollout…”

“Because Plaintiffs have not shown that their appeal has substantial merit (let alone a likelihood of success) and have not demonstrated that the balance of equities tilts in their favor at all (let alone heavily), the Court should deny Plaintiffs' motion for an injunction pending appeal,” the HISA Authority's filing stated.

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The Jan. 12 briefs were filed in accordance with a Dec. 30 request from the Sixth Circuit to explain how the Dec. 29 signage of the new law (which amended the operative language of HISA) might affect the oral arguments both sides had made in the Sixth Circuit case Dec. 7.

Not surprisingly, the plaintiffs appealing the lower court's ruling–led by the states of West Virginia, Oklahoma and Louisiana–told the court that the anti-constitutionality claims are still relevant.

The defendants–primarily the HISA Authority and the Federal Trade Commission (FTC)–informed the panel of judges that the new law has smoothed over any alleged constitutional issues and paves the way for HISA to move forward.

“The recent amendment to HISA addresses only one of these many constitutional problems,” stated a joint brief filed by all of the plaintiffs, which also include the Oklahoma and West Virginia racing commissions, three Oklahoma tracks, the Oklahoma Quarter Horse Association, the U.S. Trotting Association, and Hanover Shoe Farms, a Pennsylvania Standardbred breeding entity.

“All of HISA's other constitutional defects, however, remain unremedied,” the plaintiffs contended.

The HISA Authority defendants saw it differently, writing that, “Congress's response obviates the principal basis for Plaintiffs' private nondelegation claim in this case, which is predicated on a prior version of HISA that no longer exists.”

In a separate brief, the FTC defendants put it this way: “Congress's recent amendment eliminates any doubt that the private Horseracing Authority 'function[s] subordinately' to the [FTC] in satisfaction of the private-nondelegation doctrine….Congress's grant of general-rulemaking authority to the [FTC] resolves the 'core constitutional defect' plaintiffs purported to identify in support of their private-nondelegation claim….”

The underlying case that the plaintiffs are trying to get overturned via appeal dates to Apr. 26, 2021, when they alleged in a federal lawsuit that “HISA gives a private corporation broad regulatory authority.”

On June 2, 2022, that claim was dismissed by a judge in U.S. District Court, Eastern District of Kentucky (Lexington) for failure to state a claim of action. The plaintiffs then appealed to the Sixth Circuit.

While that Sixth Circuit appeal was pending, the Fifth Circuit came out with its own decision in a similar case against HISA that was led by the National Horsemen's Benevolent and Protective Association (HBPA).

That Nov. 18 Fifth Circuit ruling stated that HISA is unconstitutional because it “delegates unsupervised government power to a private entity,” and thus “violates the private non-delegation doctrine.” The order remanded the case back to U.S. District Court (Northern District of Texas) for “further proceedings consistent with” the Appeals Court's reversal.

But in the interim after the Fifth Circuit ruled and the Sixth Circuit heard oral arguments, Congress in late December amended the operative language of HISA to fix the alleged constitutional defect the panel had identified, and President Biden signed the measure into law as a tiny part of a vastly larger year-end spending bill.

An expected Jan. 10, 2023, mandate issuance date for the Fifth Circuit to enforce its order, has come and gone without any directive from that court that seeks to enforce its anti-constitutionality ruling against HISA. So now the next major court decision on HISA's constitutionality is expected to come when Sixth Circuit issues its order.

The plaintiffs cited specifics about why they believed the new law doesn't alter HISA's alleged unconstitutionality.

“In particular, the FTC still lacks front-end ability to veto the Authority's proposals for policy reasons, a crucial power that the Securities and Exchange Commission (SEC) enjoys when reviewing proposed rules of the self-regulatory organizations that it supervises…” the brief stated.

“The amendment also continues to permit the Authority to exercise numerous executive powers without any supervision or control by the FTC,” the plaintiffs continued. “The Authority continues to have unfettered discretion to bring enforcement actions in federal court and expand HISA's regulatory scope to include any non-Thoroughbred horse breed.

“Finally, and crucially, the amendment does nothing to cure HISA's anticommandeering violation. HISA still pushes the costs of administering HISA onto the States by requiring them to fund the Authority's operations or lose the ability to collect fees for matters that the Authority isn't even regulating.”

The FTC brief also made a comparison between HISA and the SEC, but in a different light.

Because of the new law, the FTC brief stated, “the [FTC's] oversight power is 'now also materially identical' to that of the SEC, a statutory scheme that 'has been upheld against constitutional challenge on many occasions.'”

At a different point, the FTC wrote, “It is unclear whether plaintiffs will continue to press secondary arguments in support of their private-nondelegation doctrine claim. The government has explained either why those arguments fail on the merits, why plaintiffs lack…standing to press them, or both. If plaintiffs continue to urge their arguments despite Congress's amendment to the statute, the Court should reject them…”

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Louisiana Attorney General Jeff Landry will be the keynote speaker at the National HBPA's annual conference Mar. 6-10 at the Hotel Monteleone in New Orleans' historic French Quarter, the horsemen's organization announced. The conference, being hosted by the Louisiana HPBA, takes place in conjunction with the Association of Racing Commissioners International (ARCI) Annual Meeting and Racing Integrity Conference.

Landry's keynote address is to be delivered Mar. 7. He has been at the forefront of states challenging the constitutionality of the Horseracing Integrity and Safety Act (HISA) and the Horseracing Integrity and Safety Authority (Authority) that the law established. In addition to constitutionality issues, Landry has expressed concern for the financial hardship that a largely duplicative bureaucracy will put on large portions of the horse-racing industry. Louisiana has four tracks that conduct horse racing.

“I am honored to be chosen the keynote speaker at the National HBPA Conference, and I look forward to visiting with so many who ply their trade in such a great industry,” said Landry, a decorated Army veteran. “I will continue fighting for them to prevent the federal government from taking over horse racing.”

Added National HBPA CEO Eric Hamelback: “Louisiana Attorney General Jeff Landry embodies the positive vision with the inspiration and passion we seek in a keynote speaker. He has proven to be a strong advocate for horsemen and women who understands our labor-intensive industry with its substantial agribusiness, not only in Louisiana but throughout the country. He believes in a bright and better future for horse racing, and refuses to let us be trampled by special interests.”

More information and registration is available here.

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The most significant of the July 29 filings from the HISA Authority defendants was a notice that they are appealing Judge Terry Doughty's July 26 decision to grant a preliminary injunction to the plaintiffs, who are led by the states of Louisiana and West Virginia, plus the Jockeys' Guild. This new appeal will be heard by the United States Court of Appeals for the Fifth Circuit.

At the same time, HISA asked Doughty for an emergency stay that would stave off the injunction he ordered just 72 hours earlier.

“The Court's order constitutes judicial overreach,” the HISA defendants argued, questioning how Doughty arrived at his decision to enforce an injunction.

“Although the Court purported to conduct a standing analysis, it did not analyze standing or ripeness as to each individual challenged rule,” the HISA filing stated.

HISA continued: “The Court thus invalidated the Federal Trade Commission (FTC)'s racetrack safety, enforcement, and assessment methodology rules in their entirety without ever assessing how any particular rule injured (or imminently risks injuring) Plaintiffs. The Court's resulting advisory opinion is also deeply flawed on the merits.”

Acting swiftly, Doughty responded to the defendants' 38-page filing within two hours on Friday morning. He required barely more than a single page to firmly assert “no” to HISA's request to put the regulations back into effect in Louisiana and West Virginia until the Fifth Circuit ruled on the new appeal.

“[T]his Court, for the reason more fully set out in the [preliminary injunction ruling], believes that the likelihood of Authority Defendants' success on the merits is low,” Doughty wrote in his July 29 denial. “This Court further finds Authority Defendants will not suffer irreparable harm if a stay is not entered. This Court further finds that other parties will be harmed if the stay is granted.”

Doughty then added a terse warning apparently aimed at letting the Authority know he believes there are flaws in its rulemaking process, which is at the heart of the overall lawsuit.

“Further, HISA has not yet adopted rules addressing the horseracing anti-doping and medication program,” Doughty wrote. “HISA has time to address any constitutional authority issues and procedural issues under the Administrative Procedures Act (APA) in re-drafting and re-noticing rules related to a Racetrack Safety Program.”

The HISA defendants are alleged in the June 29 suit to have violated the Fourth, Seventh and Tenth Amendments to the U.S. Constitution, plus the APA, which governs the process by which federal agencies develop and issue regulations.

The third court action undertaken by the HISA defendants Friday was a request for a clarification of Doughty's July 26 order, specifically the section that stated, “The geographic scope of the injunction shall be limited to the states of Louisiana and West Virginia, and as to all Plaintiffs in this proceeding,”

That clarification request was a direct response to a claim articulated by the Jockeys' Guild in a Wednesday press release that interpreted the judge's words to mean that the injunction “applies to all of the members of the Jockeys' Guild, regardless of the U.S. jurisdiction in which the jockey is riding.”

The HISA defendants stated that's not the proper interpretation.

“Plaintiffs have asserted that the Order extends to all of Plaintiffs' members nationwide,” the HISA filing argued. “But the members of the [Guild] are plainly not Plaintiffs in this case. And Plaintiffs' reading would wreak havoc on the sport. For example, many jockeys are not Guild members, such that different rules would apply to jockeys riding in the same race.”

The HISA Authority wants the judge to explicitly state that the injunction “applies to the implementation of the challenged rules as to Plaintiffs only and not as to [Guild] members nationwide.”

Technically, as listed on the original June 29 lawsuit, the state and organizational plaintiffs are the states of Louisiana and West Virginia, the racing commissions in both states, the Louisiana Horsemen's Benevolent and Protective Association, the Louisiana Thoroughbred Breeders Association, and the Jockeys' Guild. The only individual plaintiffs are five Louisiana-based “covered persons” under HISA rules, and only one, Gerard Melancon, is an active jockey.

The defendants consist of the HISA Authority, the FTC, and board members and overseers of both entities.

Notably, the FTC and its individually named defendants were not listed alongside the names of the HISA defendants who moved for the appeal, the stay, and the clarification in the July 29 filings.

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Last month, that program was designated an agency to officially run it–namely Drug Free Sports International, an organization that has helped administer drug testing programs to a slew of major human sports leagues.

Then, last week, the draft ADMC rules were for put out public comment. These draft rules can be found here.

Adolpho Birch, Chair of HISA's ADMC Committee, concurrently issued a letter outlining the primary changes to the revised ADMC rules as compared to the draft rules previously issued, when the United States Anti-Doping Agency's (USADA) appeared set to become HISA's enforcement agency.

In the letter, Birch points out that possible sanctions for controlled therapeutic medication violations have been reduced, to make a clearer distinction between medication offenses where banned substances are administered, and those when controlled therapeutic substances have been given.

Furthermore, in the event of a positive test result and a request for a B sample analysis, someone from the enforcement agency itself will choose the laboratory, which may be a different laboratory from the one that did the initial analysis.

Tuesday morning, HISA CEO Lisa Lazarus held a media Q&A to discuss the draft ADMC rules further. The following is a summary of her comments.

Responsible Persons

Lazarus provided interesting context to the reasons underpinning the need for trainers and owners to maintain daily treatment records for the horses in their care, a basic outline for which can be found here.

The registration system designates a responsible person for each horse. And that in turn places the burden on the responsible trainer or owner to make sure that they keep detailed records and documentation–essentially, run a “tight ship,” as Lazarus put it.

In the event of a medication violation, therefore, the HISA Authority can request these documents and records, “and those records can become part of the case,” said Lazarus.

In relation to this, Lazarus also expanded on HISA's “whereabouts” program, which essentially ensures that all horses under HISA's remit are accounted for at all times.

In the first phase of the whereabouts program, set to go into effect early next year, responsible persons are required to submit a whereabouts filing if they remove a horse from a racetrack or registered facility.

In other words, said Lazarus, “If you take a horse to a private facility or a private farm, you have to notify us.” And there are possible penalties for non-compliance, including potential fines for failure to submit a whereabouts filing.

However, failure to produce a horse for drug testing results in a presumptive two-year violation (pending a hearing), irrespective of any test result.

“If you take a horse off a public racetrack where we know where the horse is, you don't tell us where the horse is with the whereabouts filing, we look for the horse, we reach out to the Covered Person–we're going to have access to all of this through our database–and they don't produce [the horse] immediately for testing, then, it's a presumptive two-year penalty,” said Lazarus.

Ultimately, said Lazarus, the plan is for a system in place that identifies the whereabouts of any covered horse at any time.

“But one of the things we want to understand and see is whether or not we can really just mine that data from existing resources without putting a paperwork burden on participants,” she said.

Case Management

Before diving into this section, there are some important nomenclature changes to note, as compared to the previous draft rules' use of “primary” and “secondary” substances.

Under these revised draft rules, “prohibited substances” is an umbrella term for anything that shouldn't be in a horse on race day. Banned substances refers to doping substances, while controlled medications are essentially therapeutic substances.

A list of banned and controlled substances, along with possible sanctions in the event of a positive test result, can be found here.

Lazarus provided a snap-shot of the case management process.

In the event a horse tests positive for a banned substance like a steroid, an anabolic agent or a growth hormone, the responsible person is immediately suspended until a hearing takes place.

“The presumption is that this is a two-year sanction,” said Lazarus.

However, that two-year sanction can be reduced if the responsible person can show “no fault or no significant fault,” said Lazarus, adding how any penalty reduction is predicated upon the responsible person proving how the substance got into the horse's system in the first place.

“So, for example, if you're in a situation of a steroid [positive] and you want to argue that somebody gave the horse a steroid without your knowledge, you have to actually prove that [scenario] to the confidence and satisfaction of the hearing panel,” said Lazarus, who also explained how there will be potential four-year bans in the event of “aggravating circumstances” like trafficking, evading sample collection and tampering with samples.

Public Disclosure of Test Results

Under USADA's version of the ADMC program, one rather controversial component concerned how A samples results weren't necessarily going to be automatically disclosed to the public.

But Lazarus pointed to a change of tune, with A sample results now indeed set to be made available online.

“You'll know the covered person, covered horse, and the substance that was detected in the sample,” she said. “You'll be able to follow the case essentially as it goes through the various steps. [For example,] if there's a hearing to lift a suspension that'll be recorded, the decision will be recorded,” she added.

Shortened Adjudication Timelines

The timeline to hear and adjudicate cases will be “incredibly reduced” when compared to the current model at the individual state level, said Lazarus.

After a hearing, for example, the arbitrator will have to issue a decision within 14 days. In the appeals process, defendants have 30 days to file an appeal to the charges, and then, a hearing must happen within 60 days after initial notice.

When asked if the tightened system provides adequate time for defendants to mount a fair defense–especially in complex cases–Lazarus said that cases will be adjudicated on an individual basis, with wriggle room given in “exceptional circumstances” so as not to compromise due process.

That said, the truncated timeline–along with any provisional suspension in the event of a banned substance violation–could also act as an incentivizing lever, said Lazarus.

“If you're dealing with a two-year penalty and it's a banned substance, you're going to be suspended during the case processing scheduling period, and so they're probably going to be very motivated to have it heard quickly as well, so, it also protects the participants,” she said.

Registration Numbers

According to Lazarus, nearly half the horses and covered persons who need to be registered by July 1 have done so. However, racing offices will soon provide a “can't race flag” if a horse that is entered to race is not registered with HISA, she said.

This is intended more as a prompt, said Lazarus, as it won't necessarily affect the horse's eligibility to race, just as long as that horse is, indeed, registered by July 1.

Drug Testing

The actual ADMC testing program is still being developed, said Lazarus, and so, specifics are thin.

That said, in the past various officials have suggested that under HISA, all winners won't necessarily be tested post-race–something of a departure from the current model.

Lazarus indicated, however, that indeed, the post-race drug testing net could still accommodate all winners.

“We're trying to balance a robust testing program that has a deterrent effect with the intelligence-based advantages you get from looking at intelligence metrics,” said Lazarus.

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Through several iterations of proposed congressional legislations in different political administrations, WHOA forged ahead, convincing The Jockey Club, Thoroughbred Owners and Breeders' Association, Breeders' Cup and other leading organizations to join its efforts. But WHOA never lost sight of its goal as stated in its original mission statement: USADA needed to be named by congress to oversee drugs in racing.

When Mitch McConnell finally saw the light and agreed to help his state's signature industry by embracing the idea of the federal legislation, he joined the effort for a final push that resulted in the idea of naming an entity, named the Authority, to deal with the Federal Trade Commission in setting up drug controls. The idea from the very get-to and through the rewritten federal law was to bring USADA on board to do their thing.

But between passing the legislation, seating board and committee members and drafting rules for drugs and safety, the Authority lost sight of its mandate and role in the process. Things that plague most political actions and serve as a stark reminder of the corruption to which many humans are capable of brought forth conflicts of interest and the weightiness of power. The Authority shockingly announced during the holidays that it had been unable to come to a meeting of the minds with Travis Tygart, the head of USADA. The newly formed group revealed that it was moving ahead to find an alternative overseer of drugs in racing. 

Conflicts of interest? Abuse of power? Money up for grabs? Really? Yep. Really.

I will save you all from having to read the rest of this and get right to the point: USADA is the only group with the brand, gravitas, respect and tools to save the sport of Thoroughbred racing. Yes, there are other groups that could address testing, investigations and education, but in total none of them has what USADA brings to the table. 

Jeff Novitzky, a storied federal investigator who graduated from breaking open the 2002 BALCO scandal and currently is in charge of athlete performance for the Ultimate Fighting Championship, is a board member of the Authority. He is potentially an important player in determining who gets the nod to oversee drugs in racing, as he actually has experience in hiring USADA to work on behalf of the UFC.

As explained by Novitzky, there are ultimately three tasks that need to be addressed by any anti-doping organization, namely testing, investigation and education. Interestingly, he said that education is perhaps the most important, as it involves an authority figure such as Travis Tygart being able to educate athletes as to how sophisticated and thorough USADA can be in its job. Novitzky says that this aspect of the triple-pronged approach has formed an effective deterrent to cheating by his athletes. Novitzky said that it is possible to find outfits that could do testing and investigation, but very challenging to find a group that could educate the participants like USADA. That is a difference maker for him.

The reason that WHOA and I have pushed so hard for USADA is that a totally independent group is essential in allowing the game to function and give fans and competitors alike the confidence that the sport is on the level.

Here is why an independent group is needed. In a game dominated by super-wealthy, powerfully-connected participants that operate their enterprises on a win-at-all-costs ethos, only an independent body is able to withstand the onslaught of a corrupt individual to assist them in breaking the rules.

In today's environment, within the confines of racing (and not including the Federal Bureau of Investigation), powerful individuals who get caught breaking the rules always seem to find a get out of jail free card. 

The reason so many horsemen and owners seem to be against USADA's involvement in racing is that their reputation has preceded them. They are incorruptible and this scares the crap out of them.

However, with USADA now set to be totally bypassed in favor of some other organizations that have been mentioned, independence will be thrown right out the window and all of our efforts will have been for naught, because the bad guys will have won again and nothing will have changed. Right now forces that want the appearance of change, but behind closed doors actually embrace the status quo, are calling the shots.

Forces working against USADA include those with conflicts of interest. Among them are Authority members that have existing affiliations to other anti-doping doping agencies, rival testing labs lined up for a big payday and individuals pulling any strings they can find to keep USADA from becoming the top cop on the block. There is a lot of money involved and more than one testing lab or doping agency that would like to get their piece of the pie. Cronyism, regional muscle flexing and a good old-fashioned money grab characterizes the battlefield today.

It says here that the Authority has lost sight of its role in the process and that a combination of egos fueled with new-found power, members swayed by passionate enemies of USADA and lots of money up for grabs has corrupted what should have been a simple task. And for all appearances it looks very much like those empowered to guard the palace gates want to ascend to the throne.

Barry Irwin is the founder and CEO of Team Valor International

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