HISA | Horse Racing Free Tips

Letter to the Editor: Opposing Is Easy

As the legal saga that is HISA continues to be bantered around the courts horse racing fans have heard some common themes develop from those in support of and in opposition of the legislation and regulations. Those in opposition have raised many points they have repeated used as arguments for what is wrong with the entire idea and process. One of the themes that has been made as part of every opposition argument is that there is a better way to go about this, and a better set of uniform rules and regulations can be made if the proper players were brought to the table to create them.

As a racing fan for the last 30 plus years I can say we all desire both uniform rules and a disciplinary set- up that provides for fair due process but quick resolution of issues with proper penalties. As a veterinarian and animal welfare advocate, I have fought for proper rules to ensure the welfare of these majestic equine athletes. As someone who has been involved in process of creating regulations on the state level for dog kennels in PA, I know all too well how hard it can be to reach consensus and have everyone agree on everything proposed. It is the nature of the process and human nature itself. However, I also have learned through all these areas that when something is not liked or desired, a counter plan or counter offer is usually made to provide an alternative to what is being objected to. The lack of any type of counterproposal or set of rules/regulations being set forth by the people in opposition certainly is puzzling.

All the key players that are claiming to be excluded in this process of creating uniform regs could easily have come together and formed a committee, group, or whatever you want to call it of their own and work on crafting a competing set of rules and how they are to be implemented throughout the country that would alleviate any constitutionality concerns. I have yet to see even an outline proposed from any of these opposition groups on what should be done instead. Continuing with the status quo is not one that will be accepted by anyone as it has shown to be woefully lacking in many areas.

The National HBPA Convention is happening soon. Will any kind of update be given then? Will a new committee be announced? Will we finally see this “better plan” that all opposed to HISA claim can be created? Or…will we merely see the same old statements of HISA being unconstitutional and it needs to be done away with?

It is always easy to be the party in opposition to something. It is much harder to be the ones to craft a plan that will work.

–Bryan Langlois, DVM, Racing Fan and Vice-President ThoroFan

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Statement On HISA’s Anti-Doping Rules From ARCI

The Association of Racing Commissioners International (ARCI) has formally asked the Federal Trade Commission (FTC) to set aside and temporarily not approve proposed anti-doping and medication control rules proposed by the Horseracing Integrity and Safety Authority (HISA) until the constitutionality of the HISA Act is determined by the Courts.

“This has nothing to do with wanting uniform rules or having a central rule-making authority, two things the ARCI supports,” said Ed Martin, ARCI President. “This all has to do with avoiding a situation where an enforcement action is overturned because the authority of the enforcing entity to act is in question. The potential exposure to the entire sport is avoided by leaving the existing state rules and enforcement in place until this gets sorted out.”

The ARCI Board voted unanimously to make a similar request in early December and the FTC shortly thereafter rejected the proposed HISA rules without prejudice citing reasons of the underlying legal uncertainty. With the Fifth Circuit Court's rejection earlier this week of HISA's petition based on changes made recently to the Act, the potential for regulatory chaos remains.

The filing made today reads as follows:

“ARCI requests that the FTC yet again reject the Rules or, at the very least, withhold decision until all legal challenges to the Act are finally adjudicated. As you might know, in addition to the federal court case that led to the Fifth Circuit's ruling, other litigations raising material questions about the legitimacy and constitutionality of the Act remain pending. Moreover, after HISA resubmitted the proposed Rules, the Fifth Circuit denied HISA and the FTC's petition to vacate the court's earlier ruling and for a rehearing, meaning two important things: (1) by mandate of the Fifth Circuit, the preliminary injunction prohibiting HISA enforcement in states within the Fifth Circuit will return to full effect and no longer be stayed; and (2) the Fifth Circuit's decision that the Act is unconstitutional will stand for the time being.

Once again, the FTC is in a unique position to restore some level of regulatory certainty to the horse-racing industry. It should do so by quickly and publicly announcing what it already determined a few weeks ago–that it will not approve HISA's proposed rules at this time. A decision to the contrary would come at too great a cost, as it would lead to regulatory uncertainty, exacerbate existing confusion throughout the horse-racing industry, and seriously compromise public interests.”

Should the FTC approve the HISA rules and penalties were imposed for a violation of those rules, the action could be appealed and potentially overturned and wiped away due to the finding in the Fifth Circuit that HISA is unconstitutional.

Likewise if a racing commission enforces the existing State anti-doping rule and penalties imposed for a violation are appealed using the argument that the federal rule preempts state action the possibility that it can be overturned also exists.

The only way to avoid this Catch-22 is to leave state rules and enforcement in place by delaying final action on the HISA ADMC rules.

The ARCI has not taken a position on the pending litigation, although some member states have and are litigating the constitutionality of the Act. In August, Martin called for HISA to sit down with all litigants and negotiate a way out. That did not happen.

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Sam Houston Postpones Interstate Simulcast Wagering

Despite previously announcing that interstate simulcast wagering would resume Friday, Feb. 3, Sam Houston released a statement Friday morning postponing it.

“We have determined that more time is needed to fully evaluate the many legal complexities surrounding recent court decisions and the HISA amendment enacted by Congress at the end of last year,” the statement read. “While we are eager to export our signal across the country, our commitment to maintaining federal and state compliance remains our top priority. We will export our signal across state lines when we are confident that it can be done in accordance with applicable laws and regulations. Until then, we will only broadcast our signal throughout Texas and to approved international locations but will not simulcast to any other locations in the United States.”

The statement can be read in full at https://www.shrp.com/.

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Statement on HISA from NTRA President and CEO Tom Rooney

“As a former instructor of constitutional and criminal law at the United States Military Academy, I implored upon the cadets that we are a nation of laws, not of emotional disinformation. Article III of the Constitution gives the courts the task of interpreting the laws to determine constitutionality and that process is exactly what is happening right now with HISA.

“HISA is the law of the land and has been challenged in the courts. In this country constitutionality is not determined by those who may disagree with the language of the law but rather by the courts. HISA was written and passed by Members of Congress and signed originally by President Trump, then amended and signed by President Biden to make our industry better. Petitioning Members of Congress to deem the law unconstitutional is inconsistent with our system of government going back to Marbury v. Madison, unless these efforts are made to repeal the law and replace it with new legislation. Unfortunately, that is not what opponents of the law appear to be seeking. It is therefore my opinion that these opponents are misguided and are serving as a distraction from actually making the Thoroughbred industry safer and better for everyone.

“The fact of the matter is the Thoroughbred racing industry has needed change for quite some time. We all know that. The path we were going down was unfair and unsafe, and after some challenging years we could not as an industry keep doing business as usual. Since the passage and implementation of HISA, we as an industry have made strides that can help preserve horse racing so that future generations can also enjoy it. HISA has been very collaborative, has sought to work with everyone, and has always led with a call for unity. With minimum standards of fairness as set by HISA across the country, Thoroughbred racing will be more competitive and more fun. While we await final verdicts from the courts we must continue to work together as an industry to improve our sport, so the dream of future generations enjoying horse racing can become a reality.

Tom Rooney, President and CEO of the NTRA, five-term member of Congress from the state of Florida, Army JAG Corps Captain

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