HISA | Horse Racing Free Tips

NHBPA ‘Will Not Exploit the Deaths of Horses To Make a Point’

Not even 24 hours after the Horseracing Integrity and Safety Act (HISA) Authority and the Federal Trade Commission (FTC) alleged links between the sport's recent adverse headlines and the National Horsemen's Benevolent and Protective Association (NHBPA)'s request to delay the May 22 implementation of the Anti-Doping and Medication Control (ADMC) program, the NHBPA fired back with a response that stated the fatalities of seven horses during GI Kentucky Derby week shouldn't be used as a means to make legal arguments in the 2-year-old lawsuit.

“The Horsemen will not exploit the deaths of horses to make a point, because this industry is not going to fix anything moving forward by pointing [fingers],” stated the first line of the NHBPA's May 12 filing.

United States District Court Judge James Wesley Hendrix of the Northern District of Texas (Lubbock Division) had given the NHBPA until the close of the court on Monday, May 15, to file a response to the arguments against delaying the ADMC that were articulated May 11 by the HISA Authority and the FTC defendants.

But because the HISA Authority alleged in its Thursday filing that “recent headlines provide fresh reminders” of “inconsistent regulation,” and because the FTC claimed that the NHBPA has “repeatedly challenged” HISA's efforts to “prevent these kinds of tragedies,” the horsemen plaintiffs wasted little time in trying to address those accusations with a legal response by midday Friday, well ahead of the judge's deadline.

The NHBPA's filing stated that the equine fatalities during Derby week did, in effect, occur under the HISA regulatory framework, citing a May 8 statement released by the HISA Authority that said, “Churchill Downs has been cooperating with HISA since its inception and is in full compliance with our rules and processes.”

The NHBPA also stated that it was the FTC itself, and not any legal efforts by the NHBPA, that kept the ADMC from being in place before the Triple Crown series started.

“It was also the FTC's choice to delay the ADMC from May 1 to May 22. The NHBPA did not delay the ADMC rules until after the Kentucky Derby. The Defendants made that choice because in their view the rules were not ready for implementation in prime time on the most important race of the year,” the NHBPA's filing stated.

“[T]he Authority is still caught in its own logic trap as to the ADMC,” the NHBPA filing stated. “On the one hand, they say, 'few substances that were broadly legal under most states' preexisting regulations are prohibited under the new HISA rules.' On the other hand, they say the ADMC must go into effect immediately or horses will die because current state regulations are insufficient.”

On Mar. 15, 2021, the NHBPA and 12 of its affiliates sued the FTC and HISA Authority personnel, seeking to derail HISA's implementation on constitutional grounds. Judge Hendrix dismissed that suit on March 31, 2022.

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 HISA Authority's May 11 filing explained that it sees the overall issue this way: “Congress, the Executive, and both federal courts [have] come to the same correct conclusion: the Act is now constitutional.”

The NHBPA's May 12 filing countered that claim: “Congress did not 'follow the blueprint'–it made the barest tweak possible to keep the law alive and take a second shot at the courts allowing it to go through.”

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Lazarus Outlines HISA Approach To Churchill Deaths

Lisa Lazarus, the CEO of the Horseracing Integrity and Safety Authority (HISA), has written an open letter to industry participants, addressing the measures HISA plans to implement in the wake of a spate of fatalities during the first week of the Churchill Downs meet leading up to and including Kentucky Derby day. The statement, in its entirety, reads:

Fellow racing participants,

I wanted to take a minute of your time to share an update on HISA's role related to the events of last week along with a perspective on what's to come.

Our first priority is to support efforts to better understand, to the degree possible, the root causes of the deaths last week at Churchill Downs.

Here's what you can expect from the team at HISA and our counterparts at the Kentucky Horse Racing Commission (KHRC) in the coming weeks:

The KHRC is leading an Equine Catastrophic Injury Review to investigate the circumstances of and potential contributing factors to each of the fatalities that occurred. The investigations are already under way, and involve, at a minimum, interviews with the horses' connections and security personnel and review of the horses' racing, training, veterinary and pre-race exam inspection records as well as video surveillance. This is in addition to the mandatory necropsies that will be performed to further inform our collective understanding of the circumstances as outlined by HISA's Racetrack Safety Program. All findings will be submitted to HISA upon the completion of the review.

HISA will conduct its own, independent investigation of each fatality to inform whether additional steps need to be taken. HISA's investigation will include the following:

A review of the records pertaining to each horse which died, including the necropsy report, Vets' List history, past performances, exercise history, treatment records, pre-race inspection, and video records;
A review of Churchill Downs equine fatality rates from the recent period, the same period the year prior, and the most recently concluded year; as well as training fatality data;
A review of racetrack maintenance records, surface measurements, and testing data;
Interviews with the Regulatory Vet, Attending Vet, track management officials, and other relevant third parties.

HISA's findings, including the determination of whether any rule violations occurred to refer for potential enforcement proceedings, will be made public following the investigation's conclusion.

The findings associated with these investigations will also be recorded and aggregated along with other industry-wide data for in-depth analysis to eventually establish a baseline for determining with greater clarity factors that may contribute to risk of injury.

While these changes take time and do little to address the immediate and pressing concerns we share as an industry, we have operational safety rules in place that by most accounts are making a difference. And soon, we'll take another critical step toward an improved, more modern sport when the Anti-Doping and Medication Control (ADMC) Program resumes on May 22 under the Horseracing Integrity and Welfare Unit (HIWU).

For the first time in the storied history of Thoroughbred racing, there will be one set of uniform, consistent rules across all racing jurisdictions. Under the ADMC Program there will also be greater efficiency for all participants and real consequences for those who seek to break the rules for their own benefit and to the detriment of the horses under their care. The rules also create a rational, fair system for adjudicating penalties and taking into account environmental and other accidental contamination.

There is no doubt that the combination of the Racetrack Safety Program and the ADMC Program will make our sport safer for the horses entrusted to our care.

As we move forward from this collective low, I hope it is together, united with a renewed commitment to what matters most: the safety of our horses and our riders. We owe it to them to get this right. And we owe it to them to do it now.

Yours in racing,
Lisa Lazarus
HISA CEO

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HISA’S ADMC Program To Take Effect May 22

Following a launch March 27, the Horseracing Integrity & Welfare Unit (HIWU) plans to resume enforcement of the Horseracing Integrity and Safety Authority's (HISA) Anti-Doping and Medication Control (ADMC) Program May 22. The program seeks to implement the following:

Transparency: The ADMC Program requires public disclosure of alleged Anti-Doping Rule Violations once the Covered Person has been notified of the violation and Provisionally Suspended. The alleged violation will be reported by HIWU on its website, and the public information disclosed will include the date of the collection, the name of the Covered Person, the identity of the Covered Horse, the alleged ADMC Program Rule Violation, and the Prohibited Substance or Method detected/involved. Alleged Controlled Medication Rule Violations will be publicly disclosed once the B (“split”) Sample is confirmed by another lab or analysis of the Sample is waived by the Covered Person. In short, it will take weeks, not months, for an alleged violation to come to light.

Efficiency: The ADMC Program articulates specific timelines for the results management and adjudication processes, and parties can request an expedited hearing to resolve the eligibility of a Covered Person or Covered Horse prior to an upcoming race. Hearings of Anti-Doping Rule Violations will be held within 60 days of being requested, absent exceptional circumstances. Controlled Medication Rule Violations will generally be adjudicated in a few months. In summary, cases will not drag on for years.

Consistency and Fairness: In addition to samples being tested to the same levels and standards regardless of which laboratory performs the analysis, all alleged violations will be subject to the same penalties regardless of jurisdiction. Cases will be adjudicated by members of an independent Arbitral Body (Anti-Doping Rule Violations) or the Internal Adjudication Panel (Controlled Medication Rule Violations). For all cases, adjudicators will be selected so as to be free from conflict of interest, thus addressing any integrity concerns in the prosecution of cases.

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HISA, FTC Link Grim Headlines to HBPA’s Desire for ‘Status Quo’

In two separate court filings Thursday, the Horseracing Integrity and Safety Act (HISA) Authority and the Federal Trade Commission (FTC) both sharply criticized the National Horsemen's Benevolent and Protective Association (NHBPA)'s decision to seek an injunction that would delay the May 22 implementation of the Anti-Doping and Medication Control (ADMC) program.

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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