horseracing integrity and safety act | Horse Racing Free Tips

Weekly Stewards and Commissions Rulings, Oct 17-23

Every week, the TDN publishes a roundup of key official rulings from the primary tracks within the four major racing jurisdictions of California, New York, Florida and Kentucky.

Here's a primer on how each of these jurisdictions adjudicates different offenses, what they make public (or not) and where.

The TDN also posts a roundup of the relevant Horseracing Integrity and Safety Act (HISA) related rulings from the same week. These include decisions from around the country.

NEW HISA/HIWU STEWARDS RULINGS

The following rulings were reported on HISA's “rulings” portal and through the Horseracing Integrity & Welfare Unit's “pending” and “resolved” cases portals.

Resolved ADMC Violations

Date: 09/26/2023
Licensee: William Cowans, trainer
Penalty: A fine of $3,000; imposition of 3 Penalty Points. Admission of ECM Rule Violation and Acceptance of Consequences.
Explainer: A possible violation of Rule 3314—Use or Attempted Use of a Controlled Medication Substance or a Controlled Medication Method—on the horse, Dream Keeper. This is also a possible violation of Rule 4222—Intra-Articular Injections Within Seven (7) Days of Timed and Reported Workout.

Date: 09/26/2023
Licensee: William Cowans, trainer
Penalty: Treated as 1 violation with Dream Keeper under 9/8/23 HISA Guidance. Admission of ECM Rule Violation and Acceptance of Consequences
Explainer: A possible violation of Rule 3314—Use or Attempted Use of a Controlled Medication Substance or a Controlled Medication Method—on the horse, Secretary of War. This is also a possible violation of Rule 4222—Intra-Articular Injections Within Seven (7) Days of Timed and Reported Workout.

Date: 08/20/2023
Licensee: Randi Persaud, trainer
Penalty: A fine of $500; imposition of 1.5 Penalty Points. Final Decision by HIWU.
Explainer: For the presence of Phenylbutazone—Controlled Medications (Class C)—in a sample taken from Jumpster. This is a possible violation of Rule 3312—Presence of Controlled Medication Substance and/or its Metabolites or Markers (Post-Race/Vets' List).

Date: 08/12/2023
Licensee: Leslye Bouchard, trainer
Penalty: A fine of $3,000; imposition of 3 Penalty Points. Admission of ECM Rule Violation and Acceptance of Consequences.
Explainer: A possible violation of Rule 3314—Use or Attempted Use of a Controlled Medication Substance or a Controlled Medication Method—on the horse, Tomarie. This is also a possible violation of Rule 4222—Intra-Articular Injections Within Seven (7) Days of Timed and Reported Workout.

Date: 06/24/2023
Licensee: Javier Morzan, trainer
Penalty: None. EAD Charge Withdrawn
Explainer: For the presence of Metformin—a banned substance—in a sample taken from Lady Liv, who finished third at Delaware Park on 6/24/23. This was a possible violation of Rule 3212—Presence of a Banned Substance and/or its Metabolites or Markers.

Date: 06/11/2023
Licensee: Guadalupe Munoz Elizondo, trainer
Penalty: None. EAD Charge Withdrawn
Explainer: For the presence of Metformin—a banned substance—in a sample taken from Quinton's Charmer on 6/11/23. This was a possible violation of Rule 3212—Presence of a Banned Substance and/or its Metabolites or Markers.

Read more on the withdrawn charges against Elizondo and Morzan here.

Pending ADMC Violations

Date: 09/24/2023
Licensee: Manuel Badilla, trainer
Penalty: Pending
Alleged Violation: Medication violation
Explainer: For the presence of Dexamethasone—Controlled Medications (Class C)—in a sample taken from Regal Redwood, who finished third at Golden Gate on 9/24/23. This is a possible violation of Rule 3312—Presence of Controlled Medication Substance and/or its Metabolites or Markers (Post-Race/Vets' List).

Date: 08/29/2023
Licensee: Kevin Fletcher, trainer
Penalty: Pending
Alleged Violation: Medication violation
Explainer: For the presence of Caffeine—Controlled Medications (Class B)—in a sample taken from Ruby Layne. This is a possible violation of Rule 3312—Presence of Controlled Medication Substance and/or its Metabolites or Markers (Post-Race/Vets' List).

Date: 08/11/2023
Licensee: Cathal Lynch, trainer
Penalty: Pending
Alleged Violation: Medication violation
Explainer: For the presence of Flunixin—Controlled Medications (Class C)—in a sample taken from Saloon, who finished second at Laurel Park on 8/11/23. This is a possible violation of Rule 3312—Presence of Controlled Medication Substance and/or its Metabolites or Markers (Post-Race/Vets' List).

Date: 07/28/2023
Licensee: John Pimental, veterinarian
Penalty: Provisional Suspension
Alleged violation: Possession of banned substances
Explainer: For the possible possession of Levothyroxine (Thyro-L). This is a possible violation of Rule 3214(a)—Possession of Banned Substances

Date: 05/29/2023
Licensee: John Pimental, trainer
Penalty: Provisionally suspended
Alleged Violation: Medication violation
Explainer: For the presence of Methamphetamine—a banned substance—in a sample taken from Golovkin, who finished sixth at Monmouth Park on 5/29/23. This is a possible violation of Rule 3212—Presence of a Banned Substance and/or its Metabolites or Markers.

HIWU: Efforts to Harmonize Laboratory “Testing Sensitivity” Underway

In a statement Thursday, the Horseracing Integrity and Welfare Unit (HIWU)–the enforcement arm of the Horseracing Integrity and Safety Act (HISA)–said that an internal review of the six accredited laboratories used by the agency had unearthed different limits of detection in blood for metformin, a banned substance at all times under HISA.

“Following this review, which was conducted in collaboration with the laboratories, it was determined that not all applied the same Limit of Detection in analyzing samples for the presence of Metformin. HIWU has since met with all six laboratories to establish an updated, uniform Limit of Detection,” according to the HIWU statement.

Furthermore, “there are efforts to harmonize testing sensitivity across the laboratories through an external quality assurance program that includes single- and double-blind quality assurance samples and a passed sample exchange program,” according to the HIWU statement.

“Additionally, substances will continue to be reviewed on a case-by-case basis to ensure that all laboratories contracted by HIWU report uniform results for the same substances present at the same levels in different samples,” the statement reads.

All HIWU-contracted laboratories contracted are accredited by the Racing Medication & Testing Consortium.

According to HIWU, HISA's Equine Analytical Laboratory Accreditation standards are currently in development, and HIWU expects the process to continue through 2024.

Because of this flaw in testing uniformity, HIWU has lifted the provisional suspensions it had initially imposed on trainers Guadalupe Munoz Elizondo and Javier Morzan for metformin positives.

The agency wrote that it will also be withdrawing the Equine Anti-Doping Charge letters against Elizondo and Morzan “due to their Covered Horses testing positive for Metformin at levels in blood that would not have been reported as Adverse Analytical Findings under the updated Limit of Detection.”

Elizondo trainee, Quinton's Charmer (Quinton's Gold), tested positive for metformin, a common type 2 diabetes drug in humans, in a sample taken June 11 this year.

The Morzan-trained Lady Liv (Bal A Bali) tested positive for metformin after finishing third at Delaware Park June 24.

Elizondo and Morzan were two of five trainers this past week who have seen their provisional suspensions lifted by HIWU. Besides the metformin cases, two were for cocaine positives, and one was for the diuretic hydrochlorothiazide.

On Tuesday, Michelle Pujals, HIWU general counsel, sent Elizondo a letter explaining the decision behind lifting the provisional suspension.

In the letter, Pujals wrote that “HIWU has determined that there was variability across laboratories with respect to Limit of Detection for this Banned Substance, and, in order to eliminate inconsistency in enforcement based on interlaboratory capabilities, HIWU is determining whether this finding will be pursued as an Adverse Analytical Finding.”

On Wednesday, TDN submitted to HIWU a list of questions about the contents of the letter, including further explanations on what was meant by “variability across laboratories,” and “inconsistency in enforcement based on interlaboratory capabilities.”

TDN will follow-up with HIWU about the remaining questions unanswered by Thursday's statement.

There remain three trainers with pending hearings for metformin positives whose provisional suspensions have not been lifted by HIWU. They are Jonathan Wong, Angel Sanchez and Michael Lauer.

In Thursday's statement, HIWU wrote that the review of and update to the metformin limit of detection in blood represents “progress from previous state-based regulatory structures in which laboratories historically operated independently of each other, resulting in substances being controlled differently depending on the laboratory conducting the testing.”

The statement adds that “HISA's national structure enables HIWU to oversee all testing across the country and facilitate uniform enforcement of the ADMC rules. HIWU is committed to the harmonization of its laboratories and continues to work with them to reach this goal.”

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The Wait Begins: Fifth Circuit Hears HISA Constitutionality Appeal Arguments

A 2 1/2-year-old legal fight led by the National Horsemen's Benevolent and Protective Association (NHBPA) to try and overturn the Horseracing Integrity and Safety Act (HISA) based on alleged constitutional flaws got distilled into one hour of oral arguments on Wednesday in the case's second go-round before the United States Court of Appeals for the Fifth Circuit in New Orleans.

As expected, lawyers for the two sides stuck to the finer points of constitutionality law, and there were only several passing references related to horse racing. The arguments centered on the non-delegation doctrine, which is a legal principle that holds that Congress cannot delegate the power to legislate to executive agencies or private entities.

The panel of three judges–the same trio that declared a previous version of HISA unconstitutional last November, leading to an amended version of HISA that became law in December–did not overtly tip their hands as to which arguments they might be favoring based on the questions they asked of the attorneys. Nor did the judges conclude the session by declaring any timetable for issuing their decision.

The National NHBPA, 12 of its affiliates, and a number of Texas-based racetrack entities, plus the state of Texas itself and its racing commission, are the plaintiffs/appellants.

The HISA Authority, the Federal Trade Commission (FTC), and officials from each organization are the defendants/appellees.

“Congress did not, with this meager amendment, fix the fatal non-delegation problems plaguing HISA,” said William Cole, an attorney for the state of Texas who was among those who argued for the appellants.

“Again, there's at least three areas where the lawmaking power is not sufficiently subordinated, because, as we've mentioned time and again, the Authority's rules govern unless they can shove a rule through notice-and-comment rulemaking. The upshot is that for years, it's likely going to be the case that the Authority's rules govern, not the FTC's,” Cole said.

Joseph Busa, an attorney for the FTC, argued that the appellees believe the Fifth Circuit already settled the outstanding non-delegation issues when the same panel identified the constitutional flaws that led to Congress's rewrite of HISA.

“What [the appellants] are presenting to you, is they are saying no private entity can wield this kind of power, regardless of how subordinate they are, regardless of the degree of supervision that the public agency has over them. That is squarely inconsistent with almost 100 years of Supreme Court precedent,” Busa said.

The panel of judges referenced the “voluminous” number of pre-argument briefs filed by both sides in the case.

The HBPA had written in a pre-argument brief that it has problems with the Authority allegedly portraying itself as both a governmental body or a private organization “depending on which suits its interests on any individual argument,” according to an Aug. 25 court filing.

“Sometimes [the Authority] wants to be like a government entity, with the power to compel registration, collect mandatory fees, conduct searches, draw blood and urine samples, and impose sanctions with 'the force of federal law,'” the HBPA brief stated.

“Other times it wants to be a private business league, choosing its own board, running its own corporate affairs, and exempt from the Appointments and Appropriations clauses, the Freedom of Information Act, etc…” the brief continued.

This purported dual nature of the Authority, the HBPA alleged, “exposes the overall flaw” by which the 2022 rewrite of the HISA law should be struck down.

“Nothing could be more unfair or inequitable than to have a regulator with all the powers of government but exempt from all the democratic accountability and safeguards for liberty imposed on government,” the HBPA's filing stated.

The Authority defendants had asserted to the Fifth Circuit in their own pre-argument brief filed Aug. 4 that the HBPA's “feeble attempts” to contrast HISA with other statutes upheld against private non-delegation challenges rest on supposed differences that are either factually inaccurate or constitutionally irrelevant.

The Authority's brief put it this way: “Congress, the Executive, and all three federal courts that have considered the amended Act have reached the same conclusion: HISA is now constitutional. As every court to consider Congress's amendment has held, HISA no longer violates the private-nondelegation doctrine because the Authority is now subordinate to the FTC,” the filing stated.

The first time the HBPA plaintiffs attempted to challenge the original 2020 version of the HISA statute in federal court, on Mar. 15, 2021, the suit was dismissed, on March 31, 2022.

The HBPA plaintiffs then appealed, leading to the above-referenced Fifth Circuit Court reversal on Nov. 18, 2022, that remanded the case back to the lower court. In the interim, an amended version of HISA got passed by Congress and was signed into law by President Joe Biden on Dec. 29, 2022.

On May 4, 2023, the lower court deemed that the new version of HISA was constitutional because the rewrite of the law fixed the problems the Fifth Circuit had identified.

The HBPA plaintiffs then swiftly filed another appeal back to the Fifth Circuit, which led to an “expedited” scheduling of the Oct. 4 oral arguments.

The three judges on this Fifth Circuit panel are Stuart Kyle Duncan and Kurt D. Engelhardt (both nominated to their positions by President Donald Trump in 2018) and Carolyn Dineen King (who was nominated by President Jimmy Carter in 1979).

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Federal Bill to Repeal and Replace HISA in Pipeline

A bill that would repeal the Horseracing Integrity and Safety Act (HISA) and replace it with a voluntary interstate compact to govern the nation's Thoroughbred, Standardbred, and Quarter Horse racing is about to be introduced in Congress.

The Republican Louisiana Congressman Clay Higgins on Tuesday announced his intention to file the Racehorse Health and Safety Act (RHSA).

The bill would establish a governing body known as the Racehorse Health and Safety Organization (RHSO), which would oversee breed-specific Scientific Medication Control Committees tasked with drafting and recommending drug rules for each breed.

There would also be racetrack safety oversight based on existing standards as set forth by both the National Thoroughbred Racing Association (NTRA) and the model rules of the Association of Racing Commissioners International (ARCI).

A draft of the pending bill stated that each individual state that wants to join the compact must enact a state law specifically opting in within two years of the bill's passage into federal law.

Each state would decide whether its own racing commission or RHSO got to enforce the new federal rules, which would supersede existing state statutes.

States wouldn't have to opt into RHSO. But the cost of not doing so would jeopardize their racetracks' ability to simulcast out of state.

The draft bill stated that a “host State that is not a member State of the interstate compact is prohibited from allowing interstate transmission of any electronic signal” for betting purposes, including advance-deposit wagering.

Despite the effort to kill HISA, the RHSA bill would retain some similarities to the existing structure that governs America's Thoroughbred industry.

There would still be “covered” horses, races, and licensed personnel. There would still be assessments for each state to pay its share of the costs of federal regulation, although the costs would always be breed-specific, the draft bill stated.

There would also still be a board appointed to oversee the whole thing. But in RHSO's case, five of the directors would be appointed by the state racing commission of each of the five member states that had the greatest number of racing days during the preceding three-year period, with the other four to be appointed by the commissions of the remaining member states.

The National Horsemen's Benevolent and Protective Association (NHBPA) and the North American Association of Racetrack Veterinarians are among entities that have endorsed the pending legislation.

The NHBPA is simultaneously spearheading a 2 1/2-year-old lawsuit that is trying to derail HISA based on anti-constitutionality allegations. A lower federal court has already ruled that HISA is constitutional, and the Sept. 26 announcement of the new legislation comes eight days before the NHBPA will argue for an overturning of HISA before the United States Court of Appeals for the Fifth Circuit.

Doug Daniels, DVM, the president of the NHBPA, praised the pending legislation in a press release that read, in part, “The RHSA is a law that works from the ground up and brings all horseracing industry entities to the table in a collaborative, consensus-driven approach. It's a sensible piece of legislation that will cost horsemen much less than HISA because it will utilize resources already existing in the states. And it will be constitutional and democratic, allowing everyone in the industry to have a voice in the rulemaking process.”

Congressman Higgins said in a press release that the legislation “brings Constitutional liberties and rights to the forefront, protecting the horse racing industry and the beautiful animals that we love.”

Higgins's biography on his official Congressional web page states that he “is widely regarded as one of the most conservative members of Congress.” He grew up on a Louisiana horse ranch.

A former police officer in the same city as Evangeline Downs racetrack, Higgins resigned amid excessive force allegations before embarking on a political career. Since being elected to Congress in 2016, he has been known as an advocate for small government, and the fourth-term representative's stated chief objectives are border security and the enforcement of immigration laws.

But Higgins has also gained notoriety over the years for his controversial–and at times threatening and mocking–social media postings, some of which have run afoul of Facebook's “Violence and Incitement” policies.

Higgins's press release announcing the RHSA bill was accompanied by a headline that referenced his “Fight” against “Federal Overreach” and “Oppressive Mandates.”

Higgins said in his RHSA release that “Government should be a partner to Americans, not a predator.” Yet Higgins didn't elaborate on any allegedly predatorial aspects related to HISA.

Higgins did choose in his statement to politicize recent horse fatalities by blaming HISA for not being able to pinpoint why they happened.

“After [HISA's] full implementation, Churchill Downs Racetrack, home of the [GI] Kentucky Derby, was forced to shut down after twelve horses died in six weeks,” Higgins said. “Despite spending millions, the HISA Authority has failed to identify the cause of the problem.”

A months-long investigative report that the HISA Authority released Sept. 12 attributed the Churchill deaths from this past spring to no common cause. At the same time, the Authority created a multi-pronged “strategic response plan” that it believes will contribute meaningfully to the reduction of future equine fatalities.

In the wake of the RHSA bill's unveiling, Lisa Lazarus, the HISA Authority's chief executive officer, countered with her own statement in defense of her organization's enabling law that read, in part, “HISA is the law of the land and has made significant progress since its implementation began in July 2022. By bringing together stakeholders across racing, HISA has, for the first time, established national, uniform Racetrack Safety rules and a clear, tough and fair Anti-Doping and Medication Control program….

“The racing industry definitively proved over decades that voluntary compacts and state-by-state patchwork regulation do not work,” Lazarus continued. “At a time when I have called for an 'all-hands-on-deck' approach, it is disappointing to see there are still some who would rather throw up roadblocks than come together for the benefit of racing.”

A key plank in the RHSA legislation is that its overseeing entity must justify its decisions with “scientific evidence.”

The draft bill stated that, “In developing proposed scientific medication control rules with respect to a breed of covered horses, to the extent possible, a scientific medication control committee shall use scientific methods [and] take into account the unique characteristics and needs of such breed and its racing performance model, including the varying number and nature of races each year for the breed.”

In addition to having to pass a state law just to opt in to the RHSO, the draft of the bill explained that another condition of being a member will be for each state to enact a law cracking down on “deceptive” horse sales that involve horses that have been administered certain substances.

The draft bill stated each state shall “have in effect a statute that treats as an unfair or deceptive act or practice the sale of a covered horse [if] the seller knows or has reason to know the horse has been administered a bisphosphonate prior to the horse's fourth birthday or any other substance or method the RHSO determines has a long-term degrading effect on the soundness of the covered horse and fails to disclose to the buyer the administration of the bisphosphonate or other such substance or method.”

In more general terms, covered horses may only participate in covered races “if the horse is free from the active pharmacological effect of medications, other foreign substances, and methods that enhance the natural performance of the covered horse,” the draft bill stated.

Covered horses that are “injured or determined by a veterinarian to be unsound may not train or participate in a covered horserace; and the use of medications, other foreign substances, and treatment methods that mask pain in order to allow an injured or unsound covered horse to train or race in a covered horserace shall be prohibited,” the draft bill stated.

Regarding sanctioning, the RHSO may impose upon certain rulebreakers “lifetime bans from horseracing, disgorgement of purses, monetary fines and penalties, and changes to the order of finish in covered races,” the draft bill stated.

With respect to scientific medication control rule violators who want to appeal penalties, there will be “an opportunity to reduce the applicable administrative sanctions that is comparable to the opportunity provided by the Protocol for Olympic Movement Testing of the United States Medication Agency.”

Funding of the RHSO was addressed in the draft bill, but only in very general terms.

“The RHSO, acting through the Board, shall assess an initial fee from each State racing commission of a member State in an amount determined by the Board to be sufficient to cover the startup costs of the racing commission for the first full year that begins after the effective date…” the draft bill stated.

States will get billed–similar to how they are now assessed by HISA–and it will then be up to each state racing commission to determine how it will come up with the money to pay its share.

The draft bill stated this money can come “from a variety of sources, including foal registration fees, sales contributions, starter fees, track fees, and other fees on covered persons.”

The draft bill even included a provision of what is to happen if the RHSO runs in the red.

“The RHSO may incur debt to carry out the duties of the RHSO but may not accept loans from any covered person or equine industry representative,” the draft bill stated.

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