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Former HBPA Prez On 5th Circuit Appeal: ‘No Matter The Result’ Both Sides Expect Supreme Court To Decide HISA’S Fate

Leroy Gessmann, who served as president of the National Horsemen's Benevolent and Protective Association (HBPA) from 2015 to 2021 and currently works as the Arizona HBPA's executive director, told commissioners at the Arizona Racing Commission (AZRC) meeting Thursday that regardless of the decision gets handed down by the United States Court of Appeals for the Fifth Circuit, both the HBPA and its opponents in a 2 1/2-year-old lawsuit to nullify the Horseracing and Safety Integrity Act (HISA) agree that the nation's highest court will eventually have to be called upon to settle the matter.

Gessmann spoke in the wake of Oct. 4 oral arguments in the Fifth Circuit case that pits the HBPA and 12 of its affiliates against the HISA Authority and the Federal Trade Commission. On May 4, a lower court deemed that the now-in-effect version of HISA is indeed constitutional because a 2022 rewrite of the law fixed constitutionality problems the Fifth Circuit had identified. Shortly after that lower court's ruling came out in the spring, the HBPA plaintiffs then swiftly filed for another appeal back to the Fifth Circuit, which agreed to hear the case on an “expedited” basis.

“Both sides left the [Fifth Circuit] hearing feeling positive that they made good arguments and that they would win,” Gessmann said. “So it's also been stated by both parties, no matter what the result is, the next step is the U.S. Supreme Court. We'll see when we get a ruling. Usually it takes about 30 to 60 days to get a ruling.”

Gessmann then segued into updating the AZRC on a related project spearheaded by the HBPA, which is federal legislation filed Sept. 26 to repeal HISA and replace it with a voluntary interstate compact to govern the nation's Thoroughbred, Standardbred, and Quarter Horse racing.

That bill, named the Racehorse Health and Safety Act (RHSA), would establish a governing body known as the Racehorse Health and Safety Organization (RHSO), which would oversee breed-specific Scientific Medication Control Committees tasked with drafting and recommending drug rules for each breed.

There would also be racetrack safety oversight based on existing standards as set forth by both the National Thoroughbred Racing Association and the model rules of the Association of Racing Commissioners International.

Individual states would decide whether their own racing commission or the RHSO got to enforce the new federal rules, which would supersede existing state statutes. States wouldn't have to opt into the RHSO, but the cost of not doing so would jeopardize their racetracks' ability to simulcast out of state.

“So far, we've got a lot a lot of reviews on it, and it seems to have gained some traction, so hopefully something can be done there,” Gessmann said, adding that the bill has been “well-received and is moving through the process in the legislature in Congress.”

Asked by commissioner Linda York if he had any sense of a timetable for when the bill might make it to the Congressional floor, Gessmann said, “We have not been advised of anything, how quickly it could get there. Unfortunately, the National HBPA doesn't have a very large pack [of lobbyists] to help move things through.”

The RHSA's sponsor is Rep. Clay Higgins, a Louisiana Republican. More than two weeks after its introduction, the bill has not yet been assigned to a committee. It has thus far gained one co-sponsor, Rep. Doug Lamborn, a Colorado Republican.

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Letter To The Editor: Churchill’s ‘Unprecedented’ Suspension Of Baffert

My wife and I recently started working on our travel plans for next year's Triple Crown races. Unfortunately, that will likely not include the 2024 Kentucky Derby as our trainer, Mr. Bob Baffert, for the 3rd year in a row still won't be allowed to race our horses at Churchill Downs, should our horses be so qualified. We have had to deal with this for the past few years with multiple horses, where Churchill Downs, a public entity, has deemed itself to be a higher power than the various state horse racing commissions and arbitrarily and capriciously chose to exact its own extended punishment on Mr. Baffert for, what now really appears to be, personal and vindictive reasons.

It's disappointing that Churchill Downs has decided to use its private property exclusion rights in the manner it has. Not only has Churchill Downs initially applied these rights to suspend Mr. Baffert for a period eight times as long as that imposed by the Kentucky Horse Racing Commission (the body responsible for implementing the rules of racing), Churchill Downs decided in July 2023 to apply these rights indefinitely to a validly licensed trainer with no regulatory violations since his initial suspension. Extending the suspension and leaving it open to review at the end of 2024 is unprecedented.

I am not aware of other sports where the tracks, arenas or stadiums can dictate what athletes, coaches or owners are allowed to compete in their facilities. When NASCAR penalizes drivers, crews or other team members for infractions, does Daytona Speedway, Bristol or other tracks randomly ban those same drivers and crews for additional length of times? Imagine if Jerry Jones, who owns Texas Stadium, was allowed to ban a specific athlete, coach or team from competing at Texas Stadium because he wasn't happy with punishment the NFL governing committees meted out for a late hit, a personal foul or Deflategate. What if MLB, NHL, NBA/WNBA, MLS or any other competitive sport league allowed for arena owners to do this for petty offenses under the guise of specific conduct being detrimental to the sport? It's ludicrous and unimaginable!

With the advent of HISA we now have a national governing body in place that is developing consistent standards across all states. The Kentucky state rules that existed at the time of the original suspension with respect to betamethasone, a controlled substance, have been superceded by HISA regulations. Mr. Baffert was suspended for 21 picograms (or .021 nanograms) of betamethasone in Medina Spirit. The most recent HISA regulations now use a screening limit of .20 nanograms of betamethasone in horses before any action would be taken. It's ridiculous to me for Churchill Downs to extend Mr. Baffert's suspension given that 21 picograms is almost 90% below the threshold!

I have had the opportunity to work with many world class public and private companies during my career as a partner at a large global firm, having worked closely with C suites and boards on over 500 transactions. I have never seen behavior like this from a board in my career. The allegations around the “false narrative” that the Churchill Downs board has used to defend this action indicate to me there is something deeper and more personal. It appears that Churchill Downs is sending a message to all horsemen and horsewomen not to cross Churchill Downs or proffer alternative points of view lest similar suspensions, far in excess of what is deserved, will be meted out to them. This bullying and abuse of power is not in the best interests of the sport.

It's not just the trainer that suffers either. By extending the suspension, Churchill Downs is not just punishing Mr. Baffert, but Churchill Downs is punishing me. There is significant value that has been lost. Similarly, Churchill Downs is punishing my partners. Churchill Downs is punishing other owners with horses with Mr. Baffert. Churchill Downs also is punishing Mr. Baffert's employees and their families. Churchill Downs is punishing fans, old and new, many of whom are drawn to the sport because of Mr. Baffert.

The bigger issue at play here is the upside down relationship between Churchill Downs and the athletes/horses, the coaches/trainers/breeders and owners. Churchill Downs is nothing without them. I am not alone in this opinion. It would be a shame to see the history of Churchill Downs diminished because of the bullheadedness of a few.

With the upcoming 150th anniversary, the story isn't going to be just about who's there, but who's not and why.

Gregg Slager, Waves Edge Capital, LLC

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Vets’ Attorney in Bisphosphonate Suspension Says Drs. Followed the Rules

The attorney for veterinarians Scott Shell and Barbara Hippie, who have been provisionally suspended by the Horse Racing Integrity and Welfare Unit (HIWU) for possession of bisphosphonates and two other medications told the TDN Saturday morning that the veterinarians were operating under the rule as published.

“Drs. Shell and Hippie vehemently deny any violation of the veterinary rules as posted pursuant to HISA,” said Drew Mollica by phone Saturday. “We look forward an immediate hearing so that all of the facts may be explored and their good names and reputations restored. Dr. Shell's practice is known for its integrity, and any substances in his possession were used properly, and were in his possession pursuant to the rules.”

Covered horses are defined by the Horseracing Integrity and Safety Authority “any Thoroughbred horse, or any other horse made subject to the Act by election of the applicable State Racing Commission or the breed governing organization for such horse under section 3054(l), during the period: (A) beginning on the date of the horse's first Timed and Reported Workout at a Racetrack that participates in Covered Horseraces or at a training facility; and (B) ending on the date on which the horse is deemed retired.”

Dr. Shell's three-person practice, for which Dr. Hippie works, covers a HISA-covered area in Ohio—Thistledown–as well as West Virginia, where HISA is not in effect.

Drs. Shell and Hippie are charged with violating Rule 3214 (a), which reads:

Rule 3214. Other Anti-Doping Rule Violations Involving Banned Substances or Banned Methods

The following acts and omissions constitute Anti-Doping Rule Violations by the Covered Person(s) in question:

(a) Possession of a Banned Substance or a Banned Method, unless there is compelling justification for such Possession.

Mollica said that there is no violation of the rules for veterinarians possessing the substances to treat non-covered horses on farms or in other situations. “Both Dr. Shell and Hippie will show unequivocally that they were using the medication for the health and safety of non-covered horses. There's not one allegation of any banned substance being used on a covered horse.”

Earlier in September, Shell testified in person before a HIWU-related arbitration panel on behalf of trainer Dennis VanMeter, whose horse, Templement, had tested positive for isoxsuprine and phenylbutazone. VanMeter was facing a possible two-year ban as a result of the isoxsuprine positive alone.

At the hearing, it was established that Templement had been placed into one of trainer John Brown's stalls at Thistledown previously occupied by a pony routinely administered Isoxsuprine.

In the ruling, it notes that Shell “credibly testified that he and veterinarians in his practice had prescribed isoxsuprine to Mr. John Brown's pony Bucky for the last five years for a condition with its feet that would make it lame without medication.”

The arbitrator found the positive a likely instance of environmental contamination, and that VanMeter bore “no fault or negligence” for the isoxsuprine positive.

That hearing was on Sept. 12, a little over two weeks before Shell and his associate, Hippie, were allegedly found in possession of isoxsuprine and other banned substances, including bisphosphonates.

Additional reporting by Dan Ross.

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HIWU Issues Suspensions For Bisphosphonates Possession

Two veterinarians have been provisionally suspended by the Horseracing Integrity and Welfare Unit (HIWU) for possession of bisphosphonates, the controversial drug for treatment of bone degeneration issues that has long bedeviled horse racing regulators due to its ability to stay in the system for years, and it's propensity to potentially weaken bones if misused.

It is understood these are the first such actions HIWU has taken for possession of bisphosphonates. No post-race or out-of-competition samples have as yet returned positive for bisphosphonates, according to the HIWU rulings web-page.

HIWU is the drug enforcement arm of the Horseracing Integrity and Safety Act (HISA).

In an action dated Sept. 28, the two veterinarians, Scott Shell and Barbara Hippie, have been accused of violating HISA Rule 3214(a), possession of banned substances. Formal hearings on the accusations are pending.

Aside from bisphosphonates, Shell is accused of possessing two other banned substances. One is Gamma Aminobutyric Acid (GABA), an amino acid that can be used as a calming agent. The other is the vasodilator Isoxsuprine, which can be used to treat laminitis and navicular disease.

Hippie is also accused of possessing Sarapin, a pitcher plant extract that can be used in pain relief, Isoxsuprine, and Levothyroxine, a thyroid treatment. All three are banned at all times under HISA.

The TDN emailed both Shell and Hippie Friday afternoon for comment. The story will be updated as necessary. An online search suggests the veterinarians are Ohio-based.

The TDN also contacted HIWU for further details of the complaint. Spokesperson Alexa Ravit wrote in response that the organization is unable to provide any further information regarding the alleged violations beyond what is listed on the website.

Ravit confirmed, however, that the violations were the result of each individual being in possession of the listed banned substances on Sept. 28. “Possession charges may result from searches of locations such as barns, offices, and veterinary trucks,” she wrote.

With brand names like Tildren and Osphos, bisphosphonates are used in older horses to tackle issues like navicular disease. They have also historically been used off-label to treat issues like sore shins in younger horses.

A problematic feature of bisphosphonates is that they can remain in a horse's system for many years after administration, making this a potentially tricky drug to track as horses pass through multiple hands.

Further complicating matters is how a horse administered a bisphosphonate won't necessarily test positive for the drug consistently over time.

Considering the severity of the sanctions for a banned substance positive finding, the slippery issue of bisphosphonates has made many industry stakeholders jittery.

Under HISA's rules, any “Covered Horse” proven to have been administered bisphosphonates will be subject to lifetime ineligibility, and the responsible individual could incur an anti-doping violation sanction.

Prior to HISA's anti-doping and medication control program (ADMC) going into effect earlier this year, HIWU chief of science, Mary Scollay, warned stakeholders to be vigilant about purchasing horses from aboard especially.

“As a condition of sale, I would have the seller attest that the horse has never been treated [with a bisphosphonate] so you have got the ability to turn that horse back and get your money back,” Scollay told an assembled crowd of stakeholders at Santa Anita in March. “It's a civil legal situation, but I think there are ways to protect yourself if needs be.”

Horses already in the racing pipeline may have been administered bisphosphonates in the past without their current connections' knowledge. With that in mind, one stakeholder asked Scollay if HISA's investigative body has the authority to go back over the horse's full medical history, in the event of a positive bisphosphonate test.

Though a young racehorse remains beyond HISA's legal purview until the time of its first official workout, HISA does have subpoena authority, explained Scollay. Ultimately though, as the HISA law is written, the burden of responsibility, she stressed, is placed on the trainer and owners' shoulders.

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