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Tax Package Including $27.5M in Support of Florida Tbred Industry Passed

Florida lawmakers passed a tax package May 5 that includes significant support for the state's Thoroughbred industry. With the support of Senate President Kathleen Passidomo; Senator Blaise Ingoglia, the Finance and Tax Chair; and Senator Jason Pizzo; House Speaker Paul Renner; Representative Stan McClain, Chair of the House Ways and Means Committee; and Representative Lawrence McClure, chair of the State Affairs Committee; as well as Wilton Simpson, Florida's Commissioner of Agriculture, the package includes $27.5 million annually for two years to bolster purses and racing awards at Gulfstream Park and Tampa Bay Downs. In addition, the two tracks will be provided tax credits to offset the cost of the Horse Racing Integrity and Safety (HISA) Program in Florida; the HISA assessment for Florida for 2023 will be $5.9 million.

Governor Ron DeSantis is expected to sign the bill into law.

“We thank Governor DeSantis and all of our state legislators who recognize the importance of Thoroughbred racing and breeding to the state of Florida,” Florida Thoroughbred Horsemen's Association President Joe Orseno said. “The revenue generated through this bill will help ensure the continued stability and growth of an industry that is so important to so many Floridians.”

The FTHA represents more than 6,000 horse owners and trainers who not only work and race at Gulfstream, but also do business throughout the state. FTHA and 1/ST Racing, which owns and operates Gulfstream, worked in tandem with Tampa Bay Downs to craft the language for the legislation and to get it passed. Although the primary focus of the bill is support for the racing industry, the FTBOA was also at the table so that all stakeholders were represented.

According to a study by the American Horse Council, Florida's Thoroughbred industry has a $2.7 billion economic impact and creates more than 23,000 job opportunities in the state. From the racetracks, to the training centers, to the breeding farms to the horse retirement facilities, there are nearly 100,000 Thoroughbreds stabled in virtually every county in Florida.

“Florida supports hundreds of equine-related businesses–not just the tracks and the racing stables and breeding operations, but the ancillary business as well, such as feed and tack stores, veterinary services, transportation, insurance companies, attorneys, the list goes on and on,” Orseno said. “We are thrilled that our Governor and our legislators have given their support to the thousands in the state who depend upon the Thoroughbred industry.”

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NHBPA Again Goes to Court to Try and Halt May 22 ADMC Launch

With another appeal in the pipeline for its constitutionality lawsuit that is trying to derail the Horseracing Integrity and Safety Act (HISA), the National Horsemen's Benevolent and Protective Association (NHBPA) has once again asked a federal judge in Texas to grant in injunction that would delay the May 22 implementation of the HISA Authority's Anti-Doping and Medication Control (ADMC) program.

The motion for injunction pending appeal was filed on Friday, one day after United States District Court Judge James Wesley Hendrix ruled that the revamped version of HISA that got signed into law back in December was indeed constitutional, clearing the way for the ADMC's thrice-delayed launch.

On Monday, May 8, Hendrix sped along the litigation process by ordering the defendants in the case, who are personnel from the HISA Authority and the Federal Trade Commission (FTC), to file a response to the NHBPA's injunction request by Thursday, May 11.

“The Court previously denied injunctive relief, but the plaintiffs again request an injunction, arguing that they will be injured by the ADMC rule during the pendency of an expected appeal,” Hendrix wrote.

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

“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, say, Nov. 18 (the date of the last Fifth Circuit decision), and then they go out of effect again if the Fifth Circuit finds the amended law unconstitutional.”

The NHBPA filing continued:

“This Court has now considered the case a second time, and again the Court has upheld the act. Though the Court ultimately concluded the Horsemen did not present a winning case, it should conclude that at minimum they presented a substantial case, which is less than successful, but more than non-negligible.

“[The NHBPA] won at the Fifth Circuit last time around, with arguments the Sixth Circuit panel would have also adopted as to the original version [of the HISA law]. They have returned to this Court with a serious case as to the amended version of the statute. Though they did not win, they have at least established a 'fair prospect' or reasonable possibility of success on appeal…”

“Moreover, the Horsemen have presented additional arguments concerning the budget and the original meaning which also plausibly demonstrate that the FTC does not have pervasive surveillance and control over the Authority,” the May 5 filing stated.

Hendrix was the same judge who, back on March 31, 2022, dismissed the NHBPA's underlying lawsuit. The NHBPA plaintiffs appealed that decision, leading to the Fifth Circuit's reversal on Nov. 18, 2022. But the Fifth Circuit remanded the case back to the Lubbock Division for “further proceedings consistent with” the Appeals Court's reversal. Hendrix's May 6, 2023, order validated the newer version of HISA that got amended and passed into law back on Dec. 29, 2022.

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Federal Judge Rules HISA Constitutional After Law’s Rewrite

The revamped Horseracing Integrity and Safety Act (HISA) statute that got signed into law back in December was judged to be constitutional late on Thursday by the Texas federal district judge handling the case on remand from the United States Court of Appeals for the Fifth Circuit.

“Congress answered the call-identifying the three constitutional concerns that led the Fifth Circuit to hold HISA unconstitutional and rectifying each with the amendment,” wrote United States District Court Judge James Wesley Hendrix in his May 4 order out of the Northern District of Texas (Lubbock Division).

“The Federal Trade Commission (FTC) can now initiate rulemaking according to its own policy preferences,” Hendrix wrote.

“Given the Court's findings of fact and conclusions of law, the plaintiffs fail to establish that HISA, as amended following the Fifth Circuit's opinion, continues to violate the Constitution,” Hendrix wrote. “The Court denies all other requested relief.”

The HISA Authority issued a statement in the aftermath of the ruling that said, “We appreciate the Federal District Court's re-affirmation of HISA's constitutionality. The urgent need for nationwide, uniform rules to enhance the safety and integrity of Thoroughbred racing has never been clearer. We look forward to the resumption of HISA's Anti-Doping and Medication Control program on May 22, as ordered by the FTC.”

The court order delivers a legal blow to efforts by the National Horsemen's Benevolent and Protective Association (NHBPA), which had initiated the underlying lawsuit along with 12 of its affiliates in 2021. But Thursday's ruling won't end the case.

“We plan an immediate appeal of this decision, and we remain confident in our legal arguments,” Daniel Suhr, the lead attorney representing the NHBPA, stated in a press release. “Congress cannot abdicate its authority to a private corporation. Challenging this law is critical to protecting democratic accountability enshrined in our constitution.”

Eric Hamelback, the NHBPA's chief executive officer, stated in the same release that, “We've been down this road before. After a loss in the district court, we secured a win in the Fifth Circuit Court of Appeals. We will win there again, We will fight to protect horsemen and their constitutional rights all the way to the Supreme Court if needed.”

The NHBPA's case was later joined by other intervenors in Texas and private racetrack entities in that same state who had their case recently transferred to the Lubbock Division because of the overlapping nature of the complaints. The defendants are personnel from the HISA Authority and the FTC.

Hendrix was the same judge who, back on March 31, 2022, dismissed the NHBPA's underlying lawsuit, writing in an order that “despite its novelty, [HISA] as constructed stays within current constitutional limitations as defined by the Supreme Court and the Fifth Circuit.”

The NHBPA plaintiffs appealed that decision, leading to the Fifth Circuit's reversal on Nov. 18, 2022. That ruling stated HISA was unconstitutional because it “delegates unsupervised government power to a private entity,” and thus “violates the private non-delegation doctrine.”

But the Fifth Circuit's order also remanded the case back to the Lubbock Division for “further proceedings consistent with” the Appeals Court's reversal.

In the interim, Congress passed and President Biden signed into law on Dec. 29 an amendment to HISA designed to bring the law into constitutional compliance consistent with the Fifth Circuit's identified flaws.

“The Court finds that the congressional amendment to § 3053(e) cured the constitutional issues identified by the Fifth Circuit,” Hendrix wrote in his May 4 order. “First, the Fifth Circuit identified that HISA improperly granted the Authority 'sweeping rulemaking power,' but the FTC's new power to 'abrogate, add to, and modify' the 'rules of the Authority' closed the necessary gap in the relative rulemaking power between the FTC and the Authority.

“Second, the Fifth Circuit noted that the FTC's review of Authority rulemaking was limited to so-called consistency review, which gave the Authority the final word on policy. But because the FTC now has the right to make its own policy choices, the amendment remedied that concern,” Hendrix wrote.

“In sum, the only fair reading of the statute is that the FTC can create new rules as necessary to accomplish its policy preferences,” Hendrix wrote.

“It is no secret that Congress amended HISA in response to the Fifth Circuit's opinion. For Congress to amend the law without addressing one of the critical issues identified by the Fifth Circuit would be, to say the least, unusual,” Hendrix wrote.

“For all these reasons, the Court rejects the plaintiffs' arguments and conclude that Congress cured the unconstitutional aspects of HISA's original approach,” Hendrix wrote

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Joseph: `Churchill Trying To Save Face’

Churchill Downs has suspended Saffie Joseph, Jr. indefinitely and until further notice, the track announced Thursday. The announcement came on the heels of the Kentucky Horse Racing Commission (KHRC)'s order to scratch all horses trained by Joseph from racing at the track, including Lord Miles (Curlin) in Saturday's GI Kentucky Derby.

The news came at the end of a day of announcements from Joseph and others, after two of Joseph's horses died at Churchill this week, regarding whether or not he would seek to run his horses over the weekend.

Parents Pride (Maclean's Music) and Chasing Artie (We Miss Artie)–both owned by Ken Ramsey and trained by Joseph–suffered sudden-death events, the former after being eased mid-race Saturday, and the latter on his way back to the unsaddling enclosure Tuesday.

The statement from Churchill reads, “Churchill Downs Incorporated (“CDI”) announced today the indefinite suspension of trainer Saffie Joseph, Jr. until further notice. The suspension prohibits Joseph, or any trainer directly or indirectly employed by Joseph, from entering horses in races or applying for stall occupancy at all CDI-owned racetracks. CDI's decision follows the highly unusual sudden deaths of two horses trained by Joseph at Churchill Downs Racetrack: Parents Pride on Saturday and Chasing Artie on Tuesday. Lord Miles, trained by Joseph, has been scratched from Saturday's 149th running of the Kentucky Derby.”

“Given the unexplained sudden deaths, we have reasonable concerns about the condition of his horses, and decided to suspend him indefinitely until details are analyzed and understood,” said Bill Mudd, President and Chief Operating Officer of CDI. “The safety of our equine and human athletes and integrity of our sport is our highest priority. We feel these measures are our duty and responsibility.”

The announcement followed one issued by the KHRC Board of Stewards about an hour earlier on Thursday. “For the betterment of racing, the health and welfare of our equine athletes, and the safety of our jockeys, all horses trained by trainer Saffie Joseph, Jr. are scratched effective immediately and until further notice,” the announcement read. “This action is taken after consultation with Mr. Joseph, and includes Lord Miles, who was entered into the 149th running of the Kentucky Derby.”

The KHRC also released a joint statement from Ray Perry, Secretary of the Public Protection Cabinet, and Jonathan Rabinowitz, Chairman of the Kentucky Horse Racing Commission, which reads, “Kentucky is committed to being the global leader in safety and integrity of horse racing. We fully support the stewards' actions today to ensure the safety of our equine and human athletes while an investigation is ongoing into the unusual circumstances surrounding these tragic fatalities.”

Joseph had originally sought to have some horses scratched while racing others, advancing a theory that because the two who died had come from his Keeneland barn earlier in the spring, that there may be a connection there. But blood tests on all of those horses revealed no abnormalities whatsoever.

Joseph was not pleased with Churchill's decision.

“What happened this week earlier, no one wants that to happen to anyone,” he said. “I've run almost 3,800 horses and never before had horses die like that for an unknown cause. I've had injuries before but nothing like this. We've done every test and everything in our power to find out what happened. It happened at a bad time. The Kentucky Racing Commission told me there was no wrongdoing on my part. They looked at my barn and said you did nothing wrong. Churchill asked me to scratch all the horses and I did. Then for Churchill to come out and suspend me indefinitely, they're trying to save their face. My horses are two of many that they've had die on the track. They want someone to take the blame for them. I take responsibility for my horses, but we are talking about other horses, also. It's sad. I worked hard and I try to do everything the right way and the correct way and then they jump the gun after everything that has been proven shows that I did no wrongdoing. They jumped the gun and are trying to tarnish my reputation and that's not right at all. They are doing it to save their face. In the last week, they've had five deaths, but they aren't talking about the other three horses. Ask them how many deaths they've had here over the last five years. They're not talking about that either.”

Lord Miles did not go to the track Thursday morning, but walked the shedrow, according to the Churchill Downs press notes.

Earlier Thursday, the KHRC said that an investigation would be carried out after the two sudden-death events from the same barn.

“The Kentucky Horse Racing Commission is actively investigating the recent and tragic racing and training fatalities in Kentucky,” said Kristin Voskuhl, a spokesperson for the Public Protection Cabinet, which oversees the KHRC. “The KHRC is committed to the health and safety of every horse and rider and will follow the robust investigative procedures in place for issues of safety and racing integrity.”

After Churchill Downs issued a statement Wednesday following five equine fatalities at the facility on the eve of the track's biggest annual weekend of racing, representatives for the Horseracing Integrity and Safety Act (HISA) and the KHRC issued their own respective statements in response to questions by the TDN.

The KHRC failed to answer questions about how long the post-mortem examinations will take, and if the findings will be made public–which is typically not the case.

The musculoskeletal and sudden-death necropsies are being performed at the University of Kentucky. “Both types of necropsy are complete post-mortem examinations. Musculoskeletal necropsies focus on a known injury, while sudden-death necropsies are broader in scope,” Voskuhl wrote.

While HISA's Anti-Doping and Medication Control (ADMC) program won't begin until May 22, the federal law's racetrack safety program went into effect on July 1 last year.

This program requires tracks to adhere to a baseline set of racetrack welfare and safety rules, including the retention of a core group of safety and welfare personnel and racetrack surface maintenance protocols.

HISA CEO Lisa Lazarus issued a statement Wednesday evening writing that there is “nothing more important” to HISA than the welfare of both horse and rider.

“When horses die unexpectedly, we all suffer, but we take comfort in the tools and practices we have collectively developed to investigate contributing factors and deploy those learnings to minimize future risk,” Lazarus wrote.

Lazarus added: “HISA's Racetrack Safety Program mandates that we work alongside state regulators and racetrack operators to protect our equine and human athletes. We are in contact with the Kentucky Horse Racing Commission and Churchill Downs to support their processes. HISA also intends to conduct its own in-depth analysis of the fatalities and will share those findings once the full investigation is complete.”

Bill Finley and Dan Ross also contributed to this story.

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