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FTC: Latest Anti-HISA Suit Doesn’t Come ‘Within a Furlong’ of Demonstrating Harms

The Arkansas-based lawsuit filed six weeks ago that is the most recent among five separate federal complaints attempting to derail the Horseracing Integrity and Safety Act (HISA) via alleged constitutionality claims was broadly rebuffed Monday in separate legal filings by the defendants in the case, who are executives with the HISA Authority and the Federal Trade Commission (FTC).

The plaintiffs, led by Bill Walmsley, president of the Arkansas Horsemen's Benevolent and Protective Association (HBPA), and Jon Moss, the executive director of the Iowa HBPA, had asked a judge in United States District Court (Eastern District of Arkansas, Northern Division) on Apr. 6 to declare HISA unlawful and to impose an injunction prohibiting the defendants from enforcing the Anti-Doping and Medication Control (ADMC) rules scheduled to go into effect May 22.

The HISA Authority's opposition brief stated that the plaintiffs in this case, much like those in the other four cases currently swirling in the federal court system, represent only “a faction of the industry long opposed to any change” who continue to “search for a favorable forum” by essentially making similar arguments in front of different judges.

And, the HISA Authority's filing pointed out, both Walmsley and Moss are already involved as parties who have taken various legal actions in three of the other four anti-HISA cases.

“Apparently discontent with those courts' rulings, the Iowa HBPA, Walmsley, and Moss now seek the same extraordinary relief here,” the HISA Authority's May 15 filing stated.

The HBPA-affiliated plaintiffs wrote in their complaint last month that HISA “barely pretends to comply with the Constitution's separation of powers. The Act allows a private corporation to issue binding rules with no guiding principle. The FTC's ostensible oversight serves as a mere mirage.”

The HISA Authority saw the situation differently in its filing.

“The vast majority of industry participants and horseracing states have welcomed the uniform national standards, which took effect on July 1, 2022. Two [presidential] administrations have now supported the law and two bipartisan Congresses have embraced it–including through a statutory amendment that reinforced the Act's constitutionality in December 2022,” the HISA Authority's filing stated.

“Plaintiffs come nowhere near the showing required for a court to dismantle this critical federal regulatory program. Most notably, Plaintiffs cannot demonstrate a likelihood of success on the merits: All four federal judges that have considered Congress's recent amendment to HISA have concluded that the Act is constitutionally sound,” the HISA Authority's filing stated.

“Plaintiffs next rely on a meritless public nondelegation claim that the challengers in the other cases wisely abandoned, or did not consider worth [pursuing], in light of the clear intelligible principles Congress provided,” the HISA Authority's filing stated.

“And Plaintiffs' final claim under the Appointments Clause is contradicted by the undisputed fact that the Authority is not a governmental entity [and] by the decisions of the two federal courts that have already denied the same Article II claim,” the HISA Authority's filing continued.

“None of the other preliminary injunction factors favor Plaintiffs, either. Plaintiffs fail to show irreparable harm: They have been subject to HISA's racetrack safety rules for over 10 months and to similar anti-doping rules under State law for years; purses in Arkansas and Iowa have surged; and the racing season in Arkansas has now ended,” the HISA Authority's filing stated.

“The balance of harms and the public interest also weigh heavily against disrupting a federal regulatory scheme that Congress has mandated (twice) and that has enjoyed substantial compliance already,” the HISA Authority's filing stated. “This Court should deny Plaintiffs' motion for a preliminary injunction.”

The FTC's May 15 filing put it this way: “[The plaintiffs] do not come within a furlong of demonstrating, with evidence, that any purported 'harm is certain and great and of such imminence that there is a clear and present need for equitable relief.'”

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Bill Walmsley, Iowa HBPA File Suit Against FTC Over HISA

Bill Walmsley, Jon Moss, and the Horsemen's Benevolent and Protective Association for Iowa filed suit against the Federal Trade Commission to “stop the illegally constituted Horseracing Integrity and Safety Authority (HISA)” on Thursday, according to a press release from the National HBPA.

The case, Bill Walmsley, et. al. v. Federal Trade Commission, was filed in United States District Court for the Eastern District of Arkansas.

“Congress cannot outsource regulatory authority to a private organization–unaccountable to the American people–that has the power to create rules, levy fines, and adjudicate disputes,” said John Kerkhoff, an attorney at Pacific Legal Foundation. “The Horseracing Integrity and Safety Authority plainly violates the separation of powers embodied in our Constitution.”

The Pacific Legal Foundation is a conservative non-profit legal organization that describes itself as defending “Americans threatened by government overreach and abuse.” They say they are fighting the case in court at no charge.

The FTC has been at the center of recent battles between the National HBPA and other horsemen's groups and the implementation of the Horse Racing Integrity and Safety Act. On November 18, 2022, the United States Court of Appeals for the Fifth Circuit ruled that HISA was unconstitutional because it “delegates unsupervised government power to a private entity,” thereby violating the private non-delegation doctrine.

On December 29, 2022, Congress passed a so-called “HISA fix” that tweaked the law by giving the FTC limited ability to modify Authority rules. As a result, the Authority resubmitted the medication control rules and issued a public statement saying they were hopeful and optimistic that they would be able to implement them around mid-March. And in fact, due to the resubmitted rules giving the FTC more authority, the United States Sixth Circuit upheld the constitutionality of HISA and its Anti Doping and Medication Controls went into effect March 27. But just last Friday, horsemen had another court victory when a federal judge in Texas delayed the implementation for 30 days due to a violation of the Administrative Procedures Act, which requires most rules to be published for 30 days before their implementation. The ADMC is currently scheduled to go back into effect on May 1.

Friday's press release from the NHBPA reads:

“HISA is a private nonprofit organization. But the Constitution does not permit unaccountable, private actors to wield regulatory authority. Regulators must be accountable to the people, through their representatives in government. The Constitution ensures this by requiring that officers of the United States be appointed by the president or head of an executive department.

In fact, HISA violates the separation of powers in myriad ways:

1. It violates the principle of nondelegation. Congress cannot delegate its power to make the law — especially to a private organization that is not accountable to the president.

2. It violates the Appointments Clause. The Constitution requires that regulations be approved by officers of the United States, and that those officers be nominated by the president and confirmed by the Senate. The members of HISA are not officers of the United States; they are not nominated by the president, and they are not confirmed by the Senate.

3. It violates due process, by requiring that industry participants — owners, trainers, racetrack owners, and others — regulate and oversee their competitors. In practice, HISA is controlled by large industry players.

4. It violates Article III by assuming judicial powers to adjudicate disputes and impose fines. HISA doesn't have to make its case in federal court. Instead, it only needs to convince its in-house tribunal, and appeals go to HISA itself. At no point do the accused have the benefit of meaningful judicial review.”

Somewhat more dramatically, Pacific Legal Foundation's website reads, “The Horse Act's penalties and onerous testing and safety standards could very well force people like Bill (Walmsley) and Jon (Moss), who are not among horseracing's elite or wealthy, out of the sport altogether.”

The PLF says that it has won 15 of the 17 cases it has brought before the Supreme Court, typically fighting against `government overreach' by entities such as the EPA's Clean Water Act, the National Forest Service, and affirmative action.

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Iowa HBPA’s Moss Wants To Stop Recently Signed HISA Law From Being Implemented

The Horseracing Integrity and Safety Act, signed into law on Dec. 27, 2020, has been billed as the impetus for significant changes in the United States horse racing industry. The Iowa Horsemen's Benevolent and Protective Association executive director Jon Moss isn't sure that's a good thing, according to radioiowa.com.

“This new group that is being formed is unchecked in how much they can charge us as the state of Iowa in order to actually regulate the racing industry within the state,” Moss told radioiowa.com. “There's going to be a reckoning coming — we're going to be in a tough position. We may reach out and request something of your assistance to try and help stop this from being implemented.”

By law, the latest HISA can go into effect is July 1, 2022. The previously formed nominating committee is in the process of selecting the nine members who will comprise the Horseracing Integrity and Safety Authority (five independent members from outside of the horse industry, four from within the industry but without current investments or conflicts of interest). The Authority has been charged with contracting with the United States Anti-Doping Agency to oversee the anti-doping/medication control program on a national basis.

Two working committees also will be named. For more information on what comes next, read answers to frequently asked questions, as supplied by Marc Summers, vice president and general counsel for The Jockey Club, which helped steer the legislation through Congress.

Victoria Don Dorrian Named Winner Of 2020 White Horse Award

A hero is a person who is admired for courage, outstanding achievements, and noble qualities. There are heroes throughout the horse racing industry and the Race Track Chaplaincy of America (RTCA) recognizes these selfless servants annually through its RTCA White Horse Awards. This year's honorees are as follows:

White Horse Award – The winner of this year's White Horse Award is Victoria Don Dorrian. On the morning of Sept. 28, 2019, a horse managed to get loose off the backside of Prairie Meadows Racetrack. The horse ran all over the immediate area, into parking lots of local restaurants, gas stations, hotels, etc. All the while Victoria was in a truck pursuing the horse.

Their greatest fear came true as the horse eventually made its way onto the eastbound I-80 interstate, running towards the oncoming traffic. Victoria eventually caught up to the horse in the westbound traffic lane, leapt out of the truck, jumped over a concrete median (never once looking at the traffic coming from behind her), waived the horse down, and eventually captured the horse.

“Victoria showed poise and dedication like all true horsemen in such a situation by being calm and ready to act,” said Jon Moss, Iowa HBPA Executive Director, “even in a dangerous situation. The Iowa HBPA who nominated her for the award are immensely proud of her actions and how it demonstrated that horsemen are dedicated to not only their own, but to everyone's horses at the track.”

To see Victoria's story, click here: 2020 RTCA White Horse Award Winner

Community Service Award – The winner of this year's RTCA Community Service Award is Erin Crady, Executive Director of the Thoroughbred Charities of America for her continual support to racetrack Chaplaincies nationwide and beyond.

RTCA Executive Director Dan Waits said: “TCA helps so many non-profit organizations in the thoroughbred industry to improve the lives of horses and those who take care of them. Erin has always been an advocate of the Chaplaincy and partners with our National office and several local Chaplaincies to get backstretch and farm employees the help they need. RTCA is privileged to honor her in this way.”

Due to COVID-19, the traditional White Horse Awards ceremony will not be possible, however, RTCA will be honoring this year's recipients through various channels of communications, including social media.

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