Six New States File Amicus Brief In HISA Unconstitutionality Lawsuit

Six states have filed an amicus “friend of the court” brief in support of the unconstitutionality lawsuit for the Horseracing Integrity and Safety Act (HISA) working its way through federal court in Lexington, Ky., according to a report on harnesslink.com.

The amicus brief contends that HISA amounts to a private club having governmental powers, and thus is unconstitutional.

The six filing states are: Ohio, Alaska, Arkansas, Idaho, Mississippi, and Nebraska.

They join Oklahoma, West Virginia, and Louisiana, along with the United States Trotting Association, several state racing commissions, the Oklahoma Quarter Horse Racing Association, several Native American-owned race tracks, and Hanover Shoe Farms, Inc.

Read more at harnesslink.com.

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USADA’s Dr. Tessa Muir: Industry Confidence In Anti-Doping Program Key Element To HISA Success

How will equine medication rules and enforcement be different once the Horseracing Integrity and Safety Authority becomes the federally mandated regulatory body for Thoroughbred racing next year?

For starters, for the first time, regulations related to medication, testing and enforcement will be uniform in every racing state. That's a tremendous achievement in itself.

Efforts to form uniform rules go back decades to the days of the National Association of State Racing Commissioners (predecessor of the Association of Racing Commissioners International).  There has been incremental progress, through development of model rules that only went into effect if individual state racing commissions and sometimes legislators bought into them. Too often they didn't adopt them as written.

The enabling legislation creating the Authority, the Horseracing Integrity and Safety Act, overcomes those hurdles. The Authority is a non-governmental agency that will have federal oversight from the Federal Trade Commission, especially in its formative stage. Prior to July 2022, when the Authority is scheduled to be operational, the FTC will be required to accept, reject or amend the rules that the Authority is now developing to regulate medication and safety policies.

Dr. Tessa Muir, who joined the United States Anti-Doping Agency as head of its newly created equine program earlier this year, is part of the team developing those regulations. While USADA does not yet have a contract with the Authority, it's fully expected that it will be the agency named to that position, enforcing anti-doping policies in much the way it does for athletes in the Olympics, Paralympics and UFC fighters from the world of mixed martial arts.

Muir has worked as a regulatory veterinarian with Racing Victoria in Australia and before then spent six years with the British Horseracing Authority as a veterinarian assistant and anti-doping manager.

“We are diligently working with the Authority,” Muir said in an interview with the Paulick Report. “The core rules that we are developing will form the basis of the program. Implementation is that final step in bringing HISA to reality.

“Alongside the rules,” Muir added, “we are working with the Authority and hope to have a contract in place with them ASAP.”

In parallel with development of medication regulations, which will lean heavily on existing guidelines from the International Federation of Horseracing Authorities and the Association of Racing Commissioners International, Muir said USADA and the Authority are also working through a business model to determine staffing or contract labor needed to enforce its program. Among other things, there will be a need for investigators and what USADA refers to as doping control officers.

“One of the really great things with combining USADA and its human side with its equine side – assuming we do have a signed contract with the Authority – is that there will be some crossover between what goes on in the human world and the equine world,” Muir said. “Clearly, there are a lot of things that are also different, but again, where possible, we'll be trying to leverage resources sensibly to make it as streamlined as possible.

“What we are looking to do is to take the best elements from good anti-doping programs, whether they be equine or human, and create consistent, thorough and robust rules that fit the U.S. Once we have those rules, we can enforce them to ensure clean racing, the health and welfare and long-term soundness of our equine athletes.”

USADA and the Authority will also need to establish laboratory standards and an accreditation program before determining which of the existing drug testing laboratories will be utilized. While laws in some racing jurisdictions currently require testing to be conducted at in-state university labs, the assumption is that the enabling federal legislation will supersede such state laws.

Muir said post-race sampling will continue to be a part of a USADA anti-doping program, but it's obvious a significant focus will be on out-of-competition testing. Achieving what she calls a “gold standard” program will not happen overnight. Muir puts an 18- to 24-month timeline on that goal.

“A lot of it relates to collection of the data and to have a smart testing program, whether that be in or out of competition,” Muir said. “You have to develop the technology and the information and intelligence from the investigations to form that big picture on how you conduct testing.”

Muir describes best practices out-of-competition testing as an “anywhere, anytime”program that will be accompanied by a “whereabouts” requirement. That means the location of horses may need to be reported to the Authority or to USADA at all times so that surprise visits by doping control officers may take place.

“The intent of the (federal law) is that horses are accessible at any time at any place from the point of their first workout until they retire from racing,” Muir said. “In order to conduct that 'no-advance-notice' testing anywhere at anytime, you need whereabouts information in order to find the horse. That really is a critical underpinning for prevention, deterrence and detection of misuse of substances. Whilst specifics of how that may look are currently not finalized, if you look at any good anti-doping program in the world, whereabouts is a really key component. And that requires locations, not just while horses are in training but when they are in other locations resting or pre-training.”

Muir said testing is not the only way to catch violators, since some substances can be very difficult to detect.

“When you look at blood doping agents or illicit substances, it's not just things like EPO that are potentially difficult to detect,” she said. “There are other substances such as insulin, which have relatively short detection windows but potentially a much larger window for effect.

“In general terms, detection of a prohibited substance in a sample is only one of a number of different anti-doping rule violations. That detection isn't necessarily the only way to determine that someone has broken the rules.”

Muir listed anonymous tip lines as an important tool, though realizes that racing, like other sports that have struggled to control performance-enhancing drug use, there seems to be a de facto code of silence among many participants.

For that to change, Muir said, the industry will need to buy in to the principle that clean racing is better for everyone.

“The testing investigations comes under the responsibility of the enforcement agency (presumably USADA), but the tip lines and other things must have industry ownership,” she said. “When it comes to the responsibility for clean racing and preventing, deterring and detecting people who might be doing the wrong thing, it's the responsibility of the whole industry to call that out and prevent it and to stand up for clean racing.”

Muir admits that won't happen if the industry lacks confidence in USADA and the Authority.

“People have got to have confidence in those enforcing the rules, that they are acting on and doing the right thing,” she said. “I've had a lot of respect for USADA for a long time: that voice for the clean athletes and those doing the right thing. On the equine side it's the same proposition: standing up for the good people who are doing the right thing. They need to have trust that those enforcing the rules are going to help stand up for their rights.”

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Campbell: The Horse Racing Industry Nexus

For those of you who like playing the futures, or simply enjoy speculating on odds, there is a website out there for you called Polymarket. They take compelling types of questions, (some less so, depending on your persuasion), and offer you the chance to “buy in” with either a “Yes” or “No.” It's all based on $1.00, and that is what you get for each share you buy, if you are correct.

An example: Will Britney Spears' Dad be out of her conservatorship before Oct. 1? If you don't agree, you could get shares for .63 apiece. If you do, then that will run you .37. A recent addition was, “Will the KHRC rule to disqualify Medina Spirit from the Kentucky Derby by Oct. 15?” Who knows about that one!

Cashing in on opinions continues apace. In this speculative vein, if we were to construct one of these “prop bets,” what do you think the odds are that the Horseracing Integrity & Safety Act, also known more popularly as “HISA,” will be ready during the Summer of 2022? I am hopeful of this prospect after listening to Charles Scheeler's upbeat appraisal on the current state of the federal legislation that was signed into law by the Trump Administration late last year.

On Aug. 15, The Jockey Club hosted virtually its annual Round Table Conference on Matters Pertaining to Racing. Its panel of participants included Scheeler, who was elected chairman of the HISA board in late May, after an illustrious career as a lawyer and advising George Mitchell through the well-known MLB Report that bears the former U.S. Senator's name. The Round Table topics that were discussed hit on a myriad of issues related to the sport of Thoroughbred racing, but none were as important as what Scheeler had to say, in my estimation. Nearly, everything else had the air of marketing and salesmanship, rather than true reporting of anything earth-shattering. Scheeler expressed himself emphatically, and without hesitation, which was refreshing to hear. A replay of the Round Table is available here.

It sounds like, at this point, the two HISA committees (one each for racetrack safety and anti-doping policies) are hard at work, hoping to produce a structure that can be weighed and measured. According to the chairman, that draft should be ready by the fall, and a subsequent “final copy” will be polished by next spring. The Federal Trade Commission will then review these recommendations and cherry pick the ones they think will work within the bounds of the law. In other words, they could like them all, some, or none of them. Where Scheeler provided little in the way of illumination was funding. How and who exactly is going to pay for this – the taxpayers, the sport itself, the bettors? I've been concerned about this point for quite some time now, and I know I am not alone (See Paulick Report editor-in-chief Natalie Voss' article on this topic). What we do know is that once the target date of July 1 arrives, and everything is in place, then it goes “live.”

In his presentation, Scheeler referenced the ubiquitous “industry,” mentioning that the two halves of HISA could only succeed with broad support from it. I've been struck by that word for some time now, and I wondered just exactly of whom he was speaking? Did he mean the members of The Jockey Club? The various racing and breeding organizations that exist? What about those that own or work on horse farms? The betting public or reps from the gaming sector, was that it? During the broadcast, other panelists followed with the same overt usage. I went to my trusty dictionary, and though it has several definitions, in this context its meaning appears to be a “particular form or branch of economic or commercial activity.” It is not just The Jockey Club presenter at the Round Table; “industry” or “industry-wide” regularly gets tossed around when it comes to matters pertaining to horse racing.

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Pulling the curtain back, Thoroughbred racing as an “industry” exists in several wide-ranging, and seemingly disparate pockets. It is not like steel, automobiles, or cosmetics. When it comes to the sport, there are multiple industries intricately involved. There is agriculture, which touches most. Equine-related entertainment networks and racetracks bring together connections, which in turn engages the fans and/or the bettors. Of course, gambling is probably the most prominent of all of these. It influences racing because that is where the money comes from for purse structures and keeping the lights on.

Currently, this horse racing nexus of “industries” on the whole could not continue in many states without the full support of non-racing revenue. To that end, in a state like Maryland, casino revenue given to the sport undermines the economic incentive to identify, monitor, and minimize the risks. HISA has faced stiff competition because of a hash of rules and regulations that are complex and interfere with a national agenda that includes safety and testing. It will not be easy for them to wrestle control away from locales that may not agree with the end product. What seems to be true is that horse racing supporters of this great sport continue to ensure the perpetual welfare for what could be termed a “hobby” for the wealthy. Take away non-racing revenue, and what would remain?

One need look no further than the situation in New Mexico and what has occurred this past year, to witness the utter collapse of an “industry.” When the state cut off casino funding because those entities were closed due to COVID, the horse people of the state suffered. Really and truly, all professional sport franchises, and for that matter the Olympic Games, have a similar problem when it comes to cash flow. Teams are always looking for new and better stadiums (i.e., Chicago Bears), and expect the public to fund them, despite the fact that the money is not beneficial to taxpayers whatsoever. The Thoroughbred “Industry” continues to be able to generate all the right incentives at all the wrong times. That is an investment that is not about future building, as it only exists in the present (See Donna Brothers' two-part series on this topic of survival into the future: part 1 part 2).

The Jockey Club Round Table participants spent significant time talking about growing the game. Who could lead the charge as an influencer in order to produce the next generation of supporters. I find this argument that the sport must change in order to attract new blood because the public demands it, a red herring. On the contrary, it is quite the opposite. I have come to the conclusion over the past few years that the public doesn't “think” about the sport of horse racing on a regular or even semi-regular basis, unless say, a scandal or horse deaths reach the mainstream media. The central issue is that sport is too insular, overcomplicated, and self-absorbed that it forgot that it needs new people to survive. It is like we have an expertly hand-built Ferrari, only to be left with wheels made of wood. It will not last.

With potentially an expensive set of programs that are due out in the form of HISA next year, where does that leave the sport and its grand plans for a revolution? It turns out, the so-called “industry” is sorely lacking in the stability department, with funding in several states that can be both essential and hugely detrimental. Downturns in the economy, which can affect everything from breeding operations to bettors' pocketbooks, makes for shaky ground because “help” never create self-reliance. Ayn Rand-esque warnings remind us that dependence is always subject to political winds (take Pennsylvania's travails). Will HISA suffer such a fate?

My sense is that everyone connected to Thoroughbred racing, Mr. Scheeler included, needs to think long and hard about how we respond to HISA's recommendations starting this fall. Racetrack safety and medication policies should be at the forefront of all our minds. If our “industry” cannot adequately respond, it may have a detrimental impact on the result, leading to a boutique sport on the verge of extinction. Those wooden wheels are not going to be able to drive this Ferrari, if industry-wide support does not occur. A nexus event if there ever was one … that much is certain.

As for that mythical Polymarket future wager on whether HISA rolls out by July of next year, I wouldn't necessarily bet against Scheeler and his blue-ribbon committees. Industry involvement or not, I hope they succeed.

J.N. Campbell is a turf writer with Gaming USA. His work can be found at www.horseracing.net/us.

 

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FTC Calls For Dismissal Of Challenge To Horseracing Integrity And Safety Act

Attorneys for the Federal Trade Commission have filed a motion to dismiss a lawsuit filed in the U.S. District Court for Kentucky against the Horseracing Integrity and Safety Act, reports the Daily Racing Form, using similar arguments to those in a dismissal motion against the National HBPA's suit challenging HISA filed in U.S. District Court for the Northern District of Texas.

The Kentucky lawsuit was filed by a trio of states and their respective racing commissions: Louisiana, Oklahoma, and West Virginia. FTC attorneys argued that the creation of the HISA regulatory body does not violate constitutional doctrines regarding Congress' delegation of powers to a private entity.

“Adjudicating the merits of plaintiffs' legal claims now would require the court to evaluate HISA's framework in the abstract, unaided by any concrete facts or interpretative rules from the agency that Congress charged with the statute's implementation,” the motion states. “There is no justification for the court treading this path under any circumstances, and it is doubly improper in a constitutional
challenge.”

Read more at the Daily Racing Form

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