horseracing integrity and safety act | Horse Racing Free Tips

Authority Tells Appeals Court Not To Be Persuaded by HBPA’s ‘Scattershot’ Attempts to Derail HISA

With oral arguments in the United States Court of Appeals for the Fifth Circuit looming in less than two months, the Horseracing Integrity and Safety Act (HISA) Authority defendants in a two-year-old lawsuit spearheaded by the National Horsemen's Benevolent and Protective Association (NHBPA) asserted in a legal brief Friday that the panel of judges should “dismiss this appeal or affirm the judgment” from a lower court that ruled the 2022 rewrite of the HISA law was constitutionally compliant.

“Congress, the Executive, and all three federal courts that have considered the amended Act have reached the same conclusion: HISA is now constitutional,” the Authority defendants stated in the Aug. 4 filing.

“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 Federal Trade Commission [FTC],” the filing continued.

“Appellants' scattershot attempts to invalidate the Act on other grounds come up short, too,” the Authority's brief stated.

“The district court correctly rejected Appellants' due-process claim,” the brief continued. “Alongside ample statutory safeguards, a trial revealed 'no evidence of actual, unconstitutional self-dealing.' The contention that HISA violates the President's appointment (and removal) powers-which all Appellants concede is 'mutually exclusive' with the private-nondelegation claim-also fails under Supreme Court precedent.

“The Authority's private creation and control confirm what this Court's prior opinion made clear: the Authority's Board members are private individuals rather than 'Officers of the United States'-and thus 'the Appointments Clause says nothing' about them,” the brief stated.

“Finally, NHBPA's feeble attempts to contrast HISA with other statutes upheld against private-nondelegation challenges rest on supposed differences that are either factually inaccurate or constitutionally irrelevant,” the Authority's filing stated.

Back on July 5, the NHBPA, along with 12 of its affiliates, told the Fifth Circuit Court in their own brief that even after being amended by Congress, the December 2022 version of HISA remains “patently unconstitutional,” and that the Authority overseeing the sport “is basically a private police department” whose sweeping powers equate to “oligarchic tyranny.”

In addition to the HISA Authority, personnel from the FTC are defendants in the lawsuit.

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 a 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 signed into law Dec. 29, 2022.

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

The HBPA plaintiffs then swiftly filed another appeal back to the Fifth Circuit, underscoring in the July 5 brief that, “This Court's job is to again tell Congress-'No.'”

The Fifth Circuit is hearing this appeal on an expedited basis, with oral arguments tentatively scheduled for the week of Oct. 2.

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Greg Ferraro Q&A, Part II: HISA Rollout “Inconsistent and Uneven”

After Sunday's announcement that The Stronach Group (TSG) will close at the end of the year its flagship Northern California racetrack, Golden Gate Fields, the company at the helm of the sale has gone silent, ignoring all of TDN's requests for comment this week.

To bring much-needed illumination on this seismic decision, the TDN spoke Thursday morning with Greg Ferraro, the California Horse Racing Board (CHRB) chairman.

Among several points raised, Ferraro shared his thoughts on the need for a fixed hub of racing in Northern California to secure the long-term viability of the state's racing industry, and for necessary renovations of Santa Anita's backstretch accommodation as a condition of licensure at the track.

Ferraro also expressed concern that TSG has not fully considered the potentially stark ramifications from Golden Gate's closure on the rest of the state's stakeholders, including the breeders, owners, trainers and other licensees.

“I have the feeling–I don't know–but I have the feeling since The Stronach Group hasn't put anything out there yet, that perhaps they don't have their plans fully developed,” Ferraro said.

Read part one of the interview here.

The CHRB chair, however, didn't just speak on Golden Gate Fields. Ferraro also shared his thoughts and concerns surrounding the ongoing rollout of the Horseracing Integrity and Safety Act (HISA)'s Anti-Doping and Medication Control (ADMC) program.

Part two of this interview has been lightly edited for brevity and clarity.

TDN: Let's shift gears and move on to the ongoing rollout of HISA's Anti-Doping and Medication Control program. Very broadly, how would you assess the job they've done so far?

GF: I would say it's inconsistent and uneven.

Their rules are somewhat complicated for people. Sometimes they haven't made things completely clear. But their application of the rules and their disciplinary actions have been uneven and inconsistent.

What the basic plan is, is to make a major cultural change in the way racing operates. And in order to do that, you have to have some trust within the industry. I don't think their initial steps have built any sense of trust. So going forward, the industry's a little reticent, let's put it that way.

TDN: What specifics can you point to when you say, 'inconsistent and uneven'?

GF: The incident with the joint injections where some trainers were fine and others weren't. Some horses were disqualified and others weren't. They withheld the names of violating trainers for a long time. Nineteen trainers.

Then there's the inconsistency in the enforcement of this provisional suspension [in the event of a positive for a banned substance]. That's been quite a concern to trainers because a trainer could be put out of business with basically no warning, the way they are going about it.

From a California point of view, we're always quite concerned about due process. [Trainer Ray] Handal is a perfect example. They suspended him. Then, once they looked into it, they found out it was contamination in the feed. It's happened before. The mill runs the cattle feed before they run the horse feed, and the horse feed is contaminated.

So here, this guy is knocked out of business for [nearly] a week, traumatized financially and emotionally, and then it's reversed.

Instead, if they had they just notified the trainer, investigated for a few days and had a hearing before [potentially] suspending somebody, it seems to me that's a fairer way to go. I think most of the trainers in California are used to that kind of system, and that's their feeling as well.

TDN: What you're saying is the current system of an automatic provisional suspension after a positive for a banned substance needs to be eliminated or modified?

GF: Yes. Given the American jurisprudence system of innocence until proven guilty and due process, I think it needs to be reorganized.

TDN: You mentioned joint injections. In California prior to HISA, the intra-articular corticosteroid fetlock injection rule mandated a 30-day stand down period prior to racing, and all intra-articular corticosteroid joint injections had a 10-day stand down before workouts. HISA's intra-articular joint injection rule requires a 14-day stand down before racing and a seven-day stand down before workouts. Do these weaker intra-articular joint injection rules concern you?

GF: Yes, that's a concern to us. It's a step backwards for California. We noticed once we put that rule in place in California, we dropped the musculoskeletal breakdowns dramatically. So, we think it's important.

We tried to get HISA to go along with [California's rules], but they wouldn't. We're still in discussions with them about it. We've cooperated a lot with HISA and we've been supportive of them. And I don't want to come across as being negative of HISA. But for California, you know, it's a bit of a step backward. It's a big expense. And we're not getting that much out of it because we've been ahead of the game nationally for quite some time now.

The corticosteroid issue is something they need to take another look at. Corticosteroids are not bad per se. But corticosteroids and high-speed works combined are not good at all.

Take any athlete that goes into training. Over time, their joint health degenerates. It's just part of what happens. You wear the surfaces down. You can't really slow that [process] down, but you can certainly speed it up. And one way to speed it up is to inject joints [with corticosteroids] in close proximity to high-speed works.

And so, what we've done in California–and what HISA needs to do–is impress upon the trainers that they need to discontinue this attitude of injecting to run or to work and look at corticosteroids as something that they use as a medical treatment combined with rest and other rehabilitative procedures.

Long-term, intra-articular corticosteroids should be eliminated completely from racing.

Santa Anita | Benoit

TDN: What argument does HISA give in pushing back against adopting California's stricter rules?

GF: You have to realize that much of the rest of the country had [weaker] rules [than California]. And so they say, 'we're getting so much pushback from the rest of the country that we can't do it.'

But what we've argued is to let California have its stricter rules and use us as a model. Then, at some point in time, you can go back to the rest of the country and say, 'well, California's had this rule in place and look what it's done. It's been beneficial. Why don't we adopt it nationwide?'

California is the point of the spear in terms of dealing with the public and the liability of horse racing. I think they should use us as a sort of leader in animal welfare and jockey welfare.

TDN: Do you think HISA's approach on this issue runs counter to their stated mandate of animal welfare and safety?

GF: Correct. What it takes is somebody with enough backbone to stand up to the pushback.

I mean, we got pushback in California, too. But we did what we thought was right and it's proven to be beneficial. Now, the horsemen look at us and say, 'well, we didn't like it in the beginning, but we realize it was worth the sacrifice.'

TDN: Are you worried California, after a sharp downward trend in equine fatalities in recent years, might now see an uptick in fatalities and injuries as a result?

GF: Absolutely. That's what our worry is.

TDN: Wow. Because of this, has the CHRB thought about the possibility of California opting out of HISA–at least until these fixes have been secured?

GF: No, we wouldn't do that. We're supportive of HISA overall. We think the concept of a standard rule nationwide is beneficial to the industry overall. These are growing pains. I think we're better off to work within [HISA]. Us pulling out is just not an option.

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Vets: HISA Puts Them at ‘Greater Risk than Other Covered Persons’

The North American Association of Racetrack Veterinarians (NAARV) is arguing for the United States Court of Appeals for the Fifth Circuit to overturn the Horseracing Integrity and Safety Act (HISA) on constitutional grounds because the law allegedly “places the racetrack veterinarians at a greater risk than other covered persons” from a due process standpoint.

Chief among the assertions made by the NAARV in a 51-page “friend of the court” brief filed July 14 are that “initial findings of wrongdoing by a member of NAARV, pursuant to HISA, result in a report to the Federal Trade Commission (FTC) and, therefore, a federal violation. A federal violation would inevitably result in the loss of not only the NAARV member's track license, but also the loss of the member's professional license to practice veterinarian medicine.”

In addition, the NAARV alleged that HISA creates a “financial barrier to due process review.”

That's because, according to the NAARV's filing, the ultimate authority, the FTC, isn't obligated to accept any covered person's request for review of a HISA ruling against them.

And if such a request for review is denied, that covered person's only right to appeal is to bring the matter all the way to a United States Court of Appeals, the NAARV stated. There are only 12 such courts in the country, divided regionally.

“Logistically, this is more challenging,” the NAARV filing stated. “Take, for example, a covered person who has an alleged violation in Texas. He or she must now pursue an appeal before the Fifth U.S. Circuit Court of Appeals in New Orleans, Louisiana.

“A person who has allegedly committed a medication violation in Puerto Rico, if he or she decide to appeal, must pursue that appeal before the First U.S. Circuit Court of Appeals in Boston,” the brief continued.

Beyond potential travel burdens, the NAARV pointed out, bringing any legal action to that level of the federal court system isn't cheap.

“The estimated legal cost for a trip to the U.S. Court of Appeals is in excess of $25,000,” the NAARV stated.

“It creates a cost or premium for substantive due process rights that is unobtainable for most NAARV members and thus, results in a denial of their due process rights,” the NAARV stated.

At a different point in the filing, the NAARV explained that veterinarians accused of wrongdoing would no longer be “in a position to 'take the deal' on a minimum violation but instead forced to defend their position to maintain their license and their livelihood.”

The NAARV continued: “Prior to the implementation of HISA, NAARV members were able to negotiate a state violation without necessarily risking their general veterinary license. Under HISA, they are forced to do so in a system [that] deprives them of both substantive and procedural due process.”

The NAARV's assertions were made in support of the appeal led by the National Horsemen's Benevolent and Protective Association (NHBPA) and 12 of its affiliates.

The defendants in the underlying case, which has lingered in the federal court system for 28 months, are personnel from the FTC and the HISA Authority.

The HISA Authority and FTC have an Aug. 4 deadline to file their own briefs with the Fifth Circuit Court.

Oral arguments in the case are tentatively scheduled for the first week in October.

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Texas Judge Says No to ADMC Injunction

The Texas judge handling the National Horsemen's Benevolent and Protective Association (NHBPA) constitutionality lawsuit that is trying to halt the Horseracing Integrity and Safety Act (HISA) on Wednesday refused to grant an injunction that would delay the May 22 implementation of the Anti-Doping and Medication Control (ADMC) program.

In issuing his order, United States District Court Judge James Wesley Hendrix of the Northern District of Texas (Lubbock Division) pointed out that it is the second time in two weeks that he has informed the plaintiffs in a court order that they have not established a likelihood of success on the merits of their case.

The judge also stated in the May 17 order that the horsemen “misunderstand” the legal standards that apply to the granting of an injunction in this particular instance.

“The Court denies the motion for an injunction pending appeal,” Hendrix wrote. “As detailed in its 55-page Memorandum Opinion and Order [issued May 4], the plaintiffs have not established a likelihood of success on the merits. And even if their proposed standard applied, they have not made a substantial case on the merits given the congressional amendment in response to the Fifth Circuit's opinion…

“Because the plaintiffs have not established a right to an injunction pending appeal under either the correct standard or their preferred standard, the Court denies the motion,” Hendrix wrote.

“The plaintiffs misunderstand the correct standard for a district court considering a motion for injunction pending appeal,” Hendrix continued, adding at a later point, “The 'substantial case on the merits' standard does not apply to injunctions pending appeal.”

The planned appeal to the Fifth Circuit is the latest wrinkle in a lawsuit that has lingered in the courts for over two years.

On Mar. 15, 2021, the NHBPA and 12 of its affiliates sued personnel from the Federal Trade Commission (FTC) and the HISA Authority, seeking to keep HISA from being implemented. Judge Hendrix dismissed that suit on Mar. 31, 2022.

The NHBPA plaintiffs appealed, leading to a Fifth Circuit Court reversal on Nov. 18, 2022 that remanded the case back to Hendrix's court. In the interim, an amended version of HISA got signed into law on Dec. 29, 2022. That fix was designed to make HISA compliant with the constitutional defects the Fifth Circuit had identified.

On May 4, 2023, Hendrix validated the newer version of HISA as constitutional. One day later, the NHBPA informed him it is planning another appeal back to the Fifth Circuit, and it wanted the ADMC's rollout stopped while that process played out.

On May 8, Hendrix wrote that, “The Court previously denied injunctive relief, but the plaintiffs again request an injunction, arguing that they will be injured by the ADMC rule during the pendency of an expected appeal.”

Nine days later, on May 17, Hendrix handed down his decision denying that motion, noting that “the Court is not persuaded by these passing references to [cases that the NHBPA cited as precedents], especially when the plaintiffs have not identified any case in which a district court granted an injunction pending appeal after denying a motion for preliminary injunction (much less following a consolidated bench trial).”

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