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Bill That Includes New Language on HISA Passes in House

A $1.7-trillion omnibus spending bill that includes language that would give the Federal Trade Commission (FTC) more authority over the Horse Racing Integrity and Safety Authority (HISA) passed in the House of Representatives Friday. Friday's development came one day after the bill passed in the Senate. The bill will next go to President Joe Biden to be signed into law.

The language in the bill relating to HISA is meant to address issues raised by the Fifth Circuit Court of Appeals in November. That court ruled that HISA was unconstitutional because the FTC's powers were limited and that HISA had too big of a role. It is believed that the relevant language in the bill allows the FTC to “abrogate, add to, and modify the rules of the Authority promulgated in accordance with this Act as the Commission finds necessary or appropriate to ensure the fair administration of the Authority, to conform the rules of the Authority to requirements of this Act and applicable rules approved by the Commission, or otherwise in furtherance of the purposes of this Act.”

While Friday's development was a win for HISA, the battle between pro and anti-HISA forces is far from over and it's unclear what will happen next. However, it appears likely that the National HBPA and other groups fighting HISA will not back down and will continue to challenge the many issues that have been raised in the courts. It's also unclear what steps will now be taken by HISA and the FTC in order to get HISA back on track. Possibilities include asking the Fifth Circuit to reconsider its ruling in light of the fact that the FTC will have more power going forward. It's also possible that the FTC can essentially start the entire process over and ask HISA to resubmit its proposed rules.

Should the Fifth Circuit reverse itself and give HISA the green light to go forward, there are other lawsuits out there that could once again change the direction of the dispute. One is a case in which plaintiffs have made familiar arguments relating to the constitutionality of HISA that has been argued in the Sixth Circuit, which has yet to issue a ruling. Another case is pending in the U.S. District Court of Texas-Northern District, Amarillo Division, which raises several constitutional problems with the law, other than FTC rule-making input. The bottom line is that, from a legal standpoint, nothing yet is certain when it comes to HISA.

After the spending bill passed the house, the NTRA issued a press release celebrating the victory that included comments from several industry leaders.

“On behalf of NTRA members, which include broad representation of every aspect of the Thoroughbred industry, we welcome the successful bipartisan efforts of Congress to reaffirm Congressional support for HISA's mission,” said NTRA President and CEO Tom Rooney. “HISA is critical to our sport and we look forward to working collaboratively with every industry constituency to continue to support the essential role of HISA going forward. We especially want to thank Congressional leadership in Leader McConnell, Leader Schumer, and Speaker Pelosi, committee leadership in Chairman Pallone, Chairwoman Cantwell, and Rep. Schakowsky, and our longtime champions Reps. Tonko and Barr and Senators Feinstein and Gillibrand. Finally, I thank the many people from far and wide across the industry who advocated for this law with their elected officials.”

“The Jockey Club is extremely appreciative of the efforts Congress is making in support of the Horseracing Integrity and Safety Act,” said The Jockey Club President and COO Jim Gagliano. “The Jockey Club has supported nationwide, uniform rules and regulations for Thoroughbred racing for decades through numerous initiatives. HISA is Thoroughbred racing's best solution to greatly improve regulation of the sport and to help ensure our sport is clean and is safe for our athletes–both equine and human.”

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The TDN’s Top 10 Stories of 2022

Another eventful year for horse racing is about to come to an end, which makes this a good time to look back at the TDN stories that were the most widely read during the year. From the heroics of Flightline (Tapit) to the on-going saga of the Horse Racing Integrity and Safety Act (HISA) to the latest developments in the Jorge Navarro-Jason Servis scandal, there was no shortage of important stories. Unfortunately, there were a number of major stories that reflected poorly on the sport, but, our statistics show, those are stories the readers want to read.

Here are the most widely read stories of 2022:

Fifth Circuit Court of Appeals Finds HISA Unconstitutional

by TDN Staff. 162,916 views.

It was mid-November and HISA was just a month and half away from taking over the functions of drug testing and enforcing medication rules for the entire sport. The wind was at its back, at least until a bombshell ruling in a federal court. The United States Court of Appeals for the Fifth Circuit ruled that the Horseracing Integrity and Safety Act (HISA) is unconstitutional because it “delegates unsupervised government power to a private entity,” and thus “violates the private non-delegation doctrine.” It was a major blow for HISA and, in time, may prove to be the beginning of the end when it comes to efforts to unify the sport under one umbrella group responsible for regulating many vital aspects of the game.

Chris Oakes Sentenced to Three Years

by Bill Finley, 138,313 views.

As has been the case since the indictments in the doping scandal were announced in March of 2020, TDN readers could not get enough of coverage of this story. In March of 2022, standardbred trainer Chris Oakes was sentenced to three years in prison after pleading guilty to one count of misbranding and drug adulteration with intent to defraud or deceive. Oakes was not only doping his own horses, but worked closely with Navarro and provided him with performance-enhancing drugs. Though the subject was a harness trainer, the story of Oakes's sentencing was easily the second most read TDN story of 2022.

Owner Hits Jackpot With First Horse

by Bill Finley, 41,777 views

Not everything the TDN reported on in 2022 was about scandals or a matter of gloom and doom. The third story on the list was a feel-good story about 83-year-old owner Pat Kearney. Kearney got involved in the sport late in life and the very first horse he purchased turned out to be Kathleen O. (Upstart), who won the GII Gulfstream Park Oaks and the GII Davona Dale S. “It has been an amazing, exciting, energizing experience,” said Kearney, who races under the name of Winngate Stables.

Chad Brown Arrested in Saratoga on 'Obstruction of Breathing' Charge

by Bill Finley, Mike Kane and Sydney Kass, 29,360 views.

Perhaps the most shocking story of the year occurred in August when future Hall-of-Fame trainer Chad Brown was arrested and charged with criminal obstruction of breathing. It was alleged that Brown choked and then pushed a former girlfriend down some stairs who had entered his house uninvited. Brown later pled guilty to the lesser charge of harassment, which allowed him to avoid any jail time.

Flightline Retired to Lane's End

by TDN staff, 26,262 views

After Flightline won the GI Breeders' Cup Classic there was a flicker of hope that he would race in 2023 as a 5-year-old. But, in the end, the realities of the economics of the sport made it so that he was far more valuable as a sire than as a racehorse and his connections announced his retirement less than 24 hours after he won the Classic.

Green Light Go Euthanized After Belmont Workout

by TDN staff, 23,849 views

No one wants to see a horse have to be euthanized, particularly one who enjoyed success on the racetrack. Green Light Go (Hard Spun), who won the 2019 GII Saratoga Special S., had to be put down after breaking a sesamoid bone in his right foreleg during a workout at Belmont in April.

Parx Investigation Finds Contraband Suspensions Expected

by Bill Finley, 20,635 views

It was the weekend of the GI Pennsylvania Derby at Parx, but not all the news was made on the racetrack. Investigators set up shop at the Parx backstretch gate, checking cars and individuals for illegal contraband. They uncovered a number of syringes and caught a jockey possessing a battery. Two trainers and the jockey were suspended.

2022 Kentucky Race Dates Set

by T.D. Thornton, 19,444 views

With the rise in purses in Kentucky, it's no wonder that this story, which reported on the Kentucky Horse Racing Commission awarding of dates for 2022, was the eighth most-read story of the year in 2022.

Trainer Doug O'Neill Suspended 60 Days

by TDN staff, 18,946 views

In November, O'Neill was suspended 60 days, fined $10,000, and put on probation for one year stemming from a medication positive by his starter Worse Read Sanchez (Square Eddie) at Golden Gate Fields May 1.

After McCarthy Spill, Migliore Points to the NY Stewards

by Bill Finley, 18,779 views

There are a lot of people, retired jockey Richard Migliore among them, who believe the New York stewards are too lenient when it comes to penalizing jockeys for rough and careless riding. After Trevor McCarthy went down in a spill in November, fracturing his collar bone and pelvis, Migliore called out the stewards. “It's irresponsible on the part of the rider but they are not being held accountable,” Migliore said. “When that happens, it's human nature. The more you can get away with, the rougher it's going to get. The stewards need to really crack down and lay down the law. No more nonsense.”

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Grassley Amendment Fails; HISA `Fix’ Language in Omnibus Bill

After a week of political uncertainty, the Senate has passed a version of the full year-end omnibus spending bill with language affording the Federal Trade Commission (FTC) more rule-making authority in the Horseracing Integrity and Safety Act (HISA), according to a source close to the process.

The language is designed to address a ruling in the Fifth Circuit Court of Appeals from November, which found the law as written doesn't afford the FTC enough latitude in the rule-making process.

The Senate voted in favor of the bill 68-29, but it must first pass the House of Representatives before heading to the president's desk.

It's currently unclear what specific language the Senate's version of the $1.7-trillion spending bill includes regarding HISA and the FTC's modified role.

But language in a prior version of the bill allows the FTC to “abrogate, add to, and modify the rules of the Authority promulgated in accordance with this Act as the Commission finds necessary or appropriate to ensure the fair administration of the Authority, to conform the rules of the Authority to requirements of this Act and applicable rules approved by the Commission, or otherwise in furtherance of the purposes of this Act.”

Currently, the FTC can only accept or reject a proposed rule constructed by the Horseracing Integrity and Safety Authority, the private entity given broad umbrella power over implementing the act.

In a statement immediately following the news, National Horsemen's Benevolent and Protective Association (HBPA) CEO, Eric Hamelback, praised last-minute efforts by a group of lawmakers led by Senator Chuck Grassley to strip the language from the omnibus spending bill.

“We know there were several Senators who would have supported removal language. However, the amendment did not get that opportunity and the HISA “fix” language remains in the Omnibus bill. With that said we are on firm ground to remain focused as the “fix” language changes very little about the Act as it remains unconstitutional,” wrote Hamelback.

HISA spokesperson, Mandy Minger, said that the Authority would have a comment after the bill is signed.

If enacted into law, questions swirl about what this legislative fix possibly means for HISA. Various avenues were detailed in a recent conversation with constitutional law expert, Lucinda Finley.

Last week, the FTC announced that it had disapproved “without prejudice” the program's anti-doping and medication control (ADMC) rules because of the law's constitutional holes.

In the near-term, with this new language HISA can resubmit the ADMC rules with the FTC. It would then take approximately 60 days for these rules to go into effect, “assuming that the FTC was going to approve them substantively,” HISA CEO Lisa Lazarus previously explained.

There remains a ruling pending in the Sixth Circuit Court of Appeals concerning similar constitutional questions to the Fifth Circuit. It is currently unclear when that ruling will land.

But if the amended language in the omnibus spending bill is sufficient in the judgement of the Fifth Circuit, it could essentially render the current cases before the Fifth and Sixth Circuits legally moot in a practical sense.

It could also make the possibility of the Supreme Court taking them up altogether highly unlikely.

Even then, don't expect the legal fireworks to end, with a case in the U.S. District Court of Texas–Northern District, Amarillo Division–a potentially nasty looking legal blackthorn for the law.

Finley told the TDN that the case raises several additional constitutional arguments that the Fifth and Sixth Circuits did not rule on, including HISA's investigative, subpoena and punishment power as a private body, and the way in which individuals on the HISA board are appointed.

“It argues that the whole structure is a delegation of not only too much executive authority, but can amount to a delegation of legislative and judicial authority as well,” Finley explained.

If the judge in the case agrees that HISA indeed delegates too much power to a private entity, the plaintiffs in the case are seeking an injunction to suspend enforcement of the law, said Finley.

Would such an injunction apply nationwide or just in Texas?

“You've actually asked what is one of the most raging controversies in U.S. law,” Finley replied, leaving the answer open-ended.

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Attorney, Trainer Vienna Joins Epistolary Exchanges on HISA

As the deadline looms for congress to insert language into the full year-end omnibus spending bill to fix constitutional question marks surrounding the Horseracing Integrity and Safety Act (HISA), proponents and critics of the law have taken to an epistolary standoff.

Last week, trainers Wesley Ward and Larry Rivelli issued a letter through the National Horsemen's Benevolent and Protective Association (HBPA) critiquing various aspects of the national program for “too many flaws, missteps and costs that could have been averted with true inclusion and transparency in its development.”

Earlier this week, HISA CEO Lisa Lazarus conducted a zoom conference with Ward, along with attorney and former trainer Darrell Vienna, to grapple with the points raised in Ward's letter.

Issued Wednesday, Vienna released his own open letter to Lazarus, addressing six main points that he said were discussed during Monday's zoom conference.

The topics cover Vienna's thoughts on the financial assessments, the way in which therapeutic and illegal substances have been divided, the new system of detection times and screening limits vs. the old system of withdrawal guidelines and thresholds, HISA's environmental contamination policy, industry input into HISA's working framework, and the new whip rules.

Substantively speaking, Vienna's letter overlaps the contents of an open letter Charles Scheeler, the chair of the HISA board of directors, issued Tuesday addressing what he sees as “misinformation” about the law, in the process arguing that HISA's drug testing program protects “good-faith horsemen,” that HISA's rules “seek to protect” small racetracks and racing jurisdictions, and that HISA has “consistently sought feedback from horsemen” across the country. Read Scheeler's full letter here.

In his open letter, Vienna writes that there is “an apparent and obvious inequity” in the way HISA has calculated its fee assessments.

“For example,” writes Vienna, “Charles Town's annual purse money ($35,000,000) and Keeneland's annual purse money ($32,000,000) are similar; however, Keeneland's HISA Assessment is half of Charles Town's HISA assessment.”

Vienna also takes issue with HISA's environmental contamination protocols, which appear to include only a slim number of substances.

“The vast majority of prohibited substances are not subject to the Atypical Findings Policy. The Policy only applies to initial findings of HISA specified substances, endogenous substances, ractopamine, zilpaterol, and substances not listed on the Prohibited Substances list,” Vienna writes.

“Contrary to HISA's assertion of trainer friendliness, HISA's policy is among the most trainer unfriendly contamination policies in horseracing because it excludes a vast number of substances from the Atypical Findings Policy,” Vienna adds.

Ultimately, writes Vienna, “HISA rules have not been so tested and do not appear superior to ARCI model rules. Rather than rewriting the book, it may be better to see those model rules adopted and enforced uniformly throughout racing jurisdictions. If there was a concerted effort toward that goal, I believe that uniform racing and medication rules would already be the law of the land.”

Read Vienna's full letter here.

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