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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Lisa Lazarus Joins the TDN Writers’ Room Podcast

In less than 12 weeks the Horse Racing Integrity and Welfare Unit (HIWU), a branch of the Horse Racing Integrity and Safety Authority (HISA), will get to work, handling all drug testing and enforcement across the country. With that in mind, the TDN Writers' Room presented by Keeneland called on HISA Chief Executive Officer Lisa Lazarus to bring us up to speed on the latest developments regarding her organization. Lazarus was this week's Green Group Guest of the Week.

Lazarus said that seven of the racing commissions in the 14 states where racing will be held on Jan. 1 have reached an agreement with HISA and are ready to pay the assessment fee necessary to be involved with the program. In states where no agreement has been reached, HISA will have to hire its own staff to perform services like drug testing that used to fall under the racing commissions. She said she has been pleased that the tracks and racing commissions seem to grow more comfortable with HISA by the day.

“Honestly, I certainly can't sit here and say that everybody is on board now,” Lazarus said. “But I definitely feel that each day we get closer and closer to acceptance and support. And I think that's really about the tone that we set and that my staff sets in terms of wanting to help make the industry better. We're not looking to make things more difficult or more complicated. We're looking to provide this foundation of safety and integrity that everyone in racing can build their businesses around.”

She reiterated that HIWU will rely on more than drug testing to police the sport. They will work closely with 5 Stones Intelligence, which was instrumental in the arrests of Jorge Navarro, Jason Servis and more than two dozen others in 2020.

“The Horse Racing Integrity and Welfare Unit is also building their own internal capability, their own internal investigations team, which is very strong and is going to include some well-known and well-established faces,” she said. “I think probably why you ask the question, and it really resonates with me, is that you want to know if the new program is going to be very much intelligence and investigations based. It's not going to be based solely on conducting a whole lot of tests. If you look at all the top-end programs in the world, equine and otherwise, you'll see that the successful ones that really deliver integrity to their sports rely heavily on investigations. That's great. What 5 Stones has uncovered over the past couple of years has really changed this industry for the better. They truly have. They have certainly done a terrific job and we're lucky to have them as part of the sport.”

On a related subject, Lazarus said she was pleased that jockeys seemed to have adapted to HISA's rules regarding the whip.

“When (the new whip rule) was first introduced back in July, there was a learning curve to get all the jockeys on the same page and fairly so because they've been operating with different rules across multiple jurisdictions,” Lazarus said. “But now a number of months in, we're seeing a lot of very encouraging signs. First of all, if you watch the Breeders' Cup, I think it was an extraordinary display of why excessive crop use is not necessary and doesn't enhance the sport. Second of all, we're seeing a real plateau on the number of violations across the country. There had been concern and negative feedback, most of which revolved around the fact that if you were over nine strikes, you would face disqualification. We believed, or at least the Racetrack Safety Committee believed, that if you were going to actually genuinely have an impact on properties, you'd have to bring in stakeholders who had more at stake than just the jockeys. And those are only 6% of our overall number of of crop violations, which I think is quite a low number. So I think over time, we'll be able to prove that these sort of balanced crop rules are better for the sport. They don't change the sport and they haven't changed anything with the betting public.”

Elsewhere on the podcast, which is also sponsored by Coolmore, XBTV, West Point Thoroughbreds, Lane's End, Adena Springs and the Kentucky Thoroughbred Owners and Breeders, panelists Zoe Cadman, Randy Moss and Bill Finley reviewed the Breeders' Cup and all things Flightline (Tapit). The crew all agreed that the GI Breeders' Cup Classic was the best race of his six-race career and that he deserves to be considered one of the all-time greats in the sport's history. Flightline got a 121 Beyer in the Classic, five points lower than in his win the GI Pacific Classic. Moss, who makes speed figures for the Beyer team, explained why his number fell off a bit. The domination of the European-based horses brought out some interesting insights from the trio and had Finley declaring that he will never again pick against any horse Charlie Appleby sends over to run in North America. The group also looked at the few Eclipse Award races that are not complete no-brainers and all agreed that Modern Games (Ire) (Dubawi {Ire}), War Like Goddess (English Channel), Epicenter (Not This Time) and Elite Power (Curlin) should be named champion in their respective divisions.

Click here to watch the show.

Click here for the audio-only version.

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