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HISA Rules Back in Force Nationwide After Appeals Court Ruling

A temporary “administrative stay” ruling issued Wednesday night by a panel of three judges from the United States Court of Appeals for the Fifth Circuit means that “pending further consideration,” Horseracing Integrity and Safety Act Authority (HISA) rules are back in effect nationwide.

The Aug. 3 court order trumps a preliminary injunction issued July 26 by a lower U.S. District Court (Western District of Louisiana) judge that had halted the HISA rules in Louisiana and West Virginia pending the outcome of an underlying lawsuit in that court.

In that June 29 civil case, the HISA Authority, the Federal Trade Commission (FTC), and board members and overseers of both entities are alleged to have violated the Fourth, Seventh and Tenth Amendments to the Constitution, plus the Administrative Procedure Act (APA), which governs the process by which federal agencies develop and issue regulations.

The plaintiffs are the state of Louisiana, its racing commission, the Louisiana Horsemen's Benevolent and Protective Association, the Louisiana Thoroughbred Breeders Association, the Jockeys' Guild, the state of West Virginia, its racing commission, and five individuals regulated as “covered persons” under the HISA Act.

The Aug. 3 temporary ruling at the Appeals Court level didn't state a specific timetable for how long it might be in effect.

In addition to setting aside the injunction pertaining to the HISA rules, the stay from the Appeals Court will also put a hold on the lower court making any sort of ruling on a dispute over the wording in the injunction itself.

Plaintiffs and defendants have different interpretations of whether the geographic scope of the injunction applied to entities in just Louisiana and West Virginia or also included all Guild-member jockeys, regardless of where they ride. The defendants had asked the lower court to issue a clarification.

In support of its request that the Appeals Court stay the lower court's injunction, the FTC defendants wrote in an Aug. 1 filing that, “Both the government and the public will be irreparably harmed if the district court's preliminary injunction setting aside the Commission's regulatory program in its entirety in two States remains in effect until this Court resolves this appeal on the merits.

“The Commission's regulations, particularly the approximately five dozen rules addressing racetrack safety, are designed to protect and promote the health of horses, jockeys, and other horseracing participants. The district court's order eliminates those protections, impeding the Commission's ability to accomplish the Act's public purpose and threatening the very harms the regulations are aimed at preventing.”

The FTC filing continued: “The district court's order, entered three weeks after the Commission and Authority began implementing the Commission's regulations, also threatens to sow confusion within the horseracing industry with respect to the rules governing horse races, undermining the Commission's and Congress's interest in a uniform and predictable set of rules governing the conduct of horseracing. Conversely, any harm to plaintiffs from a stay will be slight, if it exists at all.”

In opposition to the motion to stay, the plaintiffs disagreed in an Aug. 3 Appeals Court filing:

“The irreparable harm Plaintiffs would suffer from a stay puts the public interest and balance of harms beyond doubt. Any harm to Defendants' nonexistent interest in furthering an illegal regulatory scheme is easily outweighed by Plaintiffs' irreparable harms,” the plaintiffs wrote.

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Speakers Announced for 70th Round Table Conference

Edited Press Release

The Jockey Club released the agenda for its Annual Round Table Conference on Matters Pertaining to Racing, which will be held as an in-person event for the first time since 2019 and hosted for the first time at the Saratoga Springs City Center in Saratoga Springs, New York.

Scheduled for Sunday, Aug. 14, at 10 a.m. ET, the conference will also be streamed on The Jockey Club's website, www.jockeyclub.com, and Facebook page, facebook.com/USJockeyClub. Chairman Stuart S. Janney III will preside over the conference.

As the keynote speaker, Lisa Lazarus, chief executive officer of the Horseracing Integrity and Safety Authority, will provide an update on the first six weeks of enforcement of the Horseracing Integrity and Safety Act (HISA), which went into effect July 1. She will also discuss future plans for the authority and the status of rules for the Anti-Doping and Medication Control Program, which goes into effect Jan. 1, 2023. Lazarus' appearance will be complemented by Senate Majority Leader Charles E. “Chuck” Schumer (D-NY), a key supporter of HISA, who will offer his perspective on the significance of the passage of HISA to the Thoroughbred industry.

Also included in this year's schedule:

• John Penza, a director of International Investigations at 5 Stones Intelligence and a former special agent for the Federal Bureau of Investigation, will be interviewed by James L. Gagliano, president and chief operating officer of The Jockey Club, in a discussion about his experiences as an investigator and the impact of the March 2020 arrests of more than two dozen individuals who participated in an operation involving the systematic and covert administration of illegal performance-enhancing drugs to racehorses.
• Tom Rooney, president and chief executive officer of the National Thoroughbred Racing Association, will talk about the NTRA's work in Washington, D.C., to benefit all industry stakeholders.
• Dennis Madsen, head of racing for the Swedish Horseracing Authority, will present on Sweden's new crop rule, which prohibits the use of the crop for encouragement and only allows it to be used for safety purposes. The rule went into effect this year.
• Dr. Lauren Stiroh, managing director of NERA Economic Consulting, will review her findings from an analysis of economic trends in Thoroughbred racing and breeding.
• Shannon Kelly, executive director of The Jockey Club Safety Net Foundation, will talk about issues facing the industry's workforce and how the foundation assists those in need.
• Carl Hamilton, president of The Jockey Club Information Systems and chairman of BloodHorse, will deliver the activities of The Jockey Club.

The full agenda and bios of all speakers will be posted on www.jockeyclub.com in advance of the conference.

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Three Jockeys to Become Test for Contested HISA Enforcement

The legal rabbit hole deepened on Tuesday in one of four lawsuits designed to derail the Horseracing Integrity and Safety Act Authority (HISA), pulling jockeys Drayden Van Dyke, Miguel Vazquez and Edwin Gonzalez into the fray as plaintiffs alleged new harms resulting from rule enforcement they believe is in contempt of a court order.

Plaintiffs led by Louisiana, West Virginia, and the Jockeys' Guild moved for a federal judge to issue an immediate order to enforce its July 26 injunction to keep Guild-member jockeys from being subject to HISA rules nationwide. The plaintiffs also want the judge to make the HISA defendants explain to the court why they should not be held in contempt for “flagrantly violating this Court's injunction within a mere four days after this Court entered it.”

A series of filings Aug. 2 in United States District Court (Western District of Louisiana) centers on different interpretations the two sides have regarding what Judge Terry Doughty meant when he wrote in that July 26 injunction that, “The geographic scope of the injunction shall be limited to the states of Louisiana and West Virginia, and as to all Plaintiffs in this proceeding.”

The plaintiffs-most specifically, the Guild-believe the judge's words apply to “all of the members of the Jockeys' Guild, regardless of the U.S. jurisdiction in which the jockey is riding.”

The HISA defendants have steadfastly maintained that individual members of the Guild are clearly not plaintiffs in the lawsuit, and to consider them that way “would wreak havoc on the sport. For example, many jockeys are not Guild members, such that different rules would apply to jockeys riding in the same race.”

Separately, the defendants have made a formal motion asking for a clarification of the wording in the injunction, but the court docket indicates the judge might not offer one until next week, unless Doughty opts to expedite the matter.

And beyond that, the defendants' appeal of their turned-down request to put a stay on the entirety of the July 26 preliminary injunction is headed for the Fifth Circuit Court of Appeals.

Confused yet? There's more. This case is only one of four lawsuits initiated at the federal level this year to keep HISA rules from going into effect nationwide. The first two got tossed out by judges but are in the process of being appealed. The fourth just got filed on Monday in a Texas court.

According to Tuesday's filings, Guild-member jockeys Van Dyke, Vazquez and Gonzalez are just the first three jockeys that the plaintiffs believe are being harmed by the allegedly contemptuous enforcement of HISA safety rules.

“Though the ink has not yet dried on this Court's order preliminarily enjoining Defendants from enforcing HISA's unlawful rules, some Defendants have already decided that they need not follow the Order,” the filing stated. “[D]espite the Order's plain text, the Authority Defendants continue to implement and enforce the enjoined rules against members of Plaintiff Jockeys' Guild.”

According to the filings, on July 27, one day after the allegedly unclear order was issued, a HISA spokesperson stated that “HISA will continue to enforce its rules in all applicable jurisdictions, with the exception of Louisiana and West Virginia. Outside of those states, the court order applies only to the five individuals specifically named in the case.”

And on July 29, the filings stated, the California Horse Racing Board (CHRB) put out an advisory that stated, “Unless and until a federal court clarifies an earlier ruling by indicating otherwise, the CHRB will continue to honor its agreement with HISA by enforcing HISA safety rules, including the rules covering use of the riding crop, as the CHRB has been doing since HISA rules went into effect on July 1.”

Then on July 30, Del Mar stewards issued a ruling against Van Dyke for his use of the riding crop in a July 29 race that they deemed to be in violation of HISA Rule 2280, imposing a $250 fine and one-day suspension.

“The suspension is set to preclude Mr. Van Dyke from racing on Aug. 6, but he must confirm participation on Aug. 3 for that race day,” Tuesday's filing stated. “To be clear, Mr. Van Dyke is a member of Plaintiff Jockeys' Guild and thus Defendants are enjoined from implementing and enforcing the enjoined Racetrack Safety Rules against Mr. Van Dyke.”

The filing continued: “Compounding this problem, over the weekend, Plaintiffs were informed that the HISA stewards at Gulfstream Park in Hallandale, Florida plan to issue multiple rulings against members of Plaintiff Jockeys' Guild for similar violations.”

For actions during July 31 races, the filing stated, “HISA stewards intend to issue written rulings on Aug. 5 against Miguel Vazquez [for] a violation of enjoined HISA Rule 2280 that prohibits a jockey from raising his wrist above a certain point before striking a horse with his riding crop; and Edwin Gonzalez for a violation of enjoined HISA Rule 2280 for a different riding crop violation.”

Both Gulfstream jockeys are expected to receive fines of $250 each, one-day suspensions, and points to escalate penalties for subsequent violations.

“Through these continued enforcement actions, the Authority Defendants thus have made clear that they seek to enforce enjoined rules against Plaintiffs' members throughout the country outside of Louisiana and West Virginia,” the plaintiffs' filing stated.

The plaintiffs are asking the judge to award compensatory damages to cover the allegedly lost purse earnings that the above three riders will incur, plus a “coercive fine of $250 per day for each day any points assessed…as a result of HISA's contempt are not purged from their records.”

The Guild-backed plaintiffs also want those damages to apply to any other Guild members who get subsequently penalized while this issue is contested in the courts.

With regard to how the judge might rule in his clarification of the injunction, the plaintiffs noted in court documents that “nearly 50 years of Supreme Court case law” is on their side, because precedents confirm that “members of associations are entitled to the benefits that their associations obtain in litigation.”

In the overall lawsuit, the HISA Authority, the Federal Trade Commission, and board members and overseers of both entities are alleged to have violated the Fourth, Seventh and Tenth Amendments to the Constitution, plus the Administrative Procedure Act (APA), which governs the process by which federal agencies develop and issue regulations. An adverse ruling against the defendants could mean a reopening of public commentary periods and a rewrite of all existing and in-the-pipeline HISA rules.

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Texas Track Group Files Latest HISA Lawsuit

A group of entities associated with various racing-related industries in Texas, including the owners of Lone Star Park, has filed a new lawsuit against the Horseracing Integrity and Safety Act (HISA) in which declaratory and injunctive relief is sought along with a request for a preliminary injunction, according to court filing dated July 29.

Submitted to the United States District Court for the Northern District of Texas, Amarillo Division, the suit focuses on the relative power of the Horseracing Integrity and Safety Authority–the umbrella non-profit established by the Act–to implement the program.

This latest filing is in the same district court–but different division–as a separate lawsuit filed by the National Horsemen's Benevolent and Protective Association (NHBPA) in 2021.

Earlier this year, a federal judge threw out that case. The NHBPA subsequently filed an appeal with the Fifth Circuit Court of Appeals, which is pending.

“The 'Authority' is empowered by law to, among other things, subpoena documents and compel testimony, search businesses and private databases and seize documents, conduct adjudicatory proceedings, and prosecute actions in federal court like other federal prosecutors,” the latest filing states.

“No private individuals have such powers. No private individual can show up at one's door and demand documents and testimony under sanction of law. No private individual can conduct a private search and seizure. And no private individual has the power to hale another private citizen into court to enforce offenses against the public. But the “Authority” does,” the filing adds.

So far, the Texas Racing Commission (TRC) has refused to comply with Act, which went into effect at the start of July, arguing that under Texas law only the commission has the authority to oversee horse racing in the state. HISA's current remit covers only Thoroughbred racing.

As a result, the signal from the state's Thoroughbred tracks cannot be sent out of state and advance deposit wagering companies are prevented from taking betting on Texas Thoroughbred races. There are no Thoroughbred meets scheduled in Texas between now and the end of the year.

According to a spokesperson for the Authority, HISA will mount a legal defence “while the Authority's focus remains on implementing the Racetrack Safety program and finalizing Anti-Doping and Medication Control rules.” Implementation for the latter is scheduled for Jan. 2023.

“The majority of racing participants support HISA's mission to protect those who play by the rules and hold those who fail to do so accountable in order to keep our equine and human athletes safe and the competition fair,” wrote the HISA spokesperson.

“The immense collaboration with state racing commissions, stewards, veterinarians, racetracks, trainers, and other horsemen that has taken place to date is evidence of this support, and we intend to continue to fulfill our mandate and work to make the industry safer,” the spokesperson added.

The plaintiffs include Global Gaming LSP, a limited liability company which owns Lone Star Park, and Gulf Coast Racing LLC, which owns a greyhound racetrack located in Nueces County, Texas. Gulf Coast Racing is allegedly seeking to redesignate the track as a Class 2 horseracing track, according to the filing.

The other two plaintiffs consist of LRP Group Ltd. a limited partnership working towards “operating an active horseracing track” in the south of the state, the filing states, and Valle De Los Tesoros, a limited partnership similarly looking to operate a horseracing track in South Texas, one currently designated inactive by the TRC.

It's unclear whether the planned racetracks listed in the suit are intended for Thoroughbred racing.

Among the arguments the plaintiffs make is that the legal jurisdiction given the Authority is of government power “in general” and of executive power “in particular,” but that the current design of the Authority renders it unconstitutional, meaning it is exercising “nothing other than naked legislative power.”

The plaintiffs write: “The 'Board' of the 'Authority,' comprising private individuals appointed through a Nominating Committee whose membership is established by the Authority's own incorporation documents, has not been appointed through the constitutionally required mechanisms for the exercise of executive power.”

To argue their position, the plaintiffs reference such historic texts as The Federalist papers of U.S. founding father, Alexander Hamilton, and “Commentaries on the Laws of England,” by William Blackstone, an English jurist from the 18th century who long suffered terrible gout.

This latest lawsuit constitutes the fourth legal challenge to HISA. Aside from the NHBPA filing, a case filed by the state of Oklahoma in the United States District Court, Eastern Division of Kentucky, is similarly ongoing.

Late last month, Louisiana and West Virginia won a preliminary injunction in federal court aimed at keeping HISA from being implemented in those two states until the Act's constitutionality gets decided in full.

HISA has since filed motions for stay pending appeal with the United States Court of Appeals for the Fifth Circuit.

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