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Q&A with HISA’s Lisa Lazarus: Part Two

Last week, an important piece of the Horseracing Integrity and Safety Act (HISA) puzzle was slotted into place when the Horseracing Integrity and Safety Authority's board of directors announced that Drug Free Sport International (DFSI) had been selected as the enforcement agency for the Anti-Doping and Medication Control (ADMC) arm of the program.

In part one of this two-part Q&A, HISA CEO Lisa Lazarus discussed the reasons behind DFSI's selection, details about the newly announced Horseracing Integrity and Welfare Unit (HIWU) and broad updates on the Anti-Doping and Medication Control (ADMC) program in general.

In part two, Lazarus discusses the working relationship between DFSI and the Authority–the non-profit umbrella established by HISA to oversee the broad program–as well as practical concerns about implementation of the safety program on July 1.

The following has been edited for brevity and for clarity.

TDN: What will the working relationship between the Authority and DFSI–what is essentially a service agency–look like? Will they be working primarily at the behest of the Authority or will they be an entirely separate, autonomous agency?

Lazarus: Entirely separate. Once we sign off and give them the contract, we don't have any influence.

Our only authority, so to speak, is over the rule-making process and over, of course, selecting the agency. So, if we feel the agency is not doing their job, we have the right to make changes. But ultimately, running the day-to-day business of the unit is going to be their responsibility and the responsibility of the advisory council.

TDN: At the recent Association of Racing Commissioners International (ARCI) conference, journalist Tim Livingston made remarks about lax drug-testing protocols in sports like the NFL and the NBA. He said, “I think you guys have to be careful because a lot of these guys who architect these doping programs are doing so with the leagues,” and then he made the comment that they're not particularly thorough and aren't designed to catch cheats.

DFSI has worked with both the NFL and the NBA. Do these comments concern you?

Lazarus: They don't at all. I think they're completely untrue and actually quite shocking.

I worked at the NFL for 10 years, so I know very well how the NFL runs its drug program. To say that it's not intended to catch [cheats] while people are caught all the time, I don't really understand that perspective. I mean, I would disagree wholeheartedly.

I know people involved in every sports league in the U.S. I think the one difference is that the drug programs are collectively bargained between the leagues and the unions. So, there's obviously a representative of the athletes that has the chance to make sure that there's due process. There are protections–that's expected. That's what makes a program good. I mean, the program has to have integrity and fairness. But DFSI for me has the highest level of integrity. They also do work for USADA [U.S. Anti-Doping Agency] from time to time. So, they really have a stellar reputation.

I think the comments that were made are really unfounded and I don't know where they come from. My understanding was that his talk and experience wasn't in anti-doping, it was [to do with] a referee scandal.

Sarah Andrew

TDN: But in terms of transparency of results, transparency of who's getting tested, the sharing of results, this is a different ball game to what DFSI has had to largely handle with some of those other human leagues, right? This is a different beast for DFSI, no?

Lazarus: Yes, it is an entirely different beast. And that's why we've created this Horseracing Integrity and Welfare Unit.

The way that I look at it is, DFSI is sort of the anchor tenant, because testing is the most work-intensive component of the unit. But ultimately, what they're doing is working with the advisory council to oversee experts that we're going to hire in all of these different pillars. So yes, it is an entirely different beast than what they're used to, but that's why the structure reflects that difference.

TDN: Stepping back, July 1 is looming large, and so far only three states–California, Kentucky and Minnesota–have agreed to shoulder the costs of the track safety component of HISA. What if all or nearly all of the other states decide not…

Lazarus: And Colorado. But I don't know if that's public.

TDN: But what if all, or nearly all, of the other states decide not to join them? In that worst-case scenario…

Lazarus: It's not a worst-case scenario. It's not a question of whether or not the costs get paid, it's a question of who's responsible.

The constitution doesn't allow us to force the state to do anything, so, if the states choose not to pay, what happens is that cost gets transferred to the racetracks on a per-start, strength-of-purse basis. The race tracks then take on that responsibility and they have to come up with a formula to spread that cost amongst the covered persons and to determine who pays how much.

If it's not paid, obviously we're going to work with the tracks to make it as easy as we can for them, but ultimately, the stick that we have in the Act is that they can lose their signal for pari-mutuel wagering.

Horsephotos

TDN: There's an important personnel component to this as well, right? Let's take regulatory vets. There's already a real shortage of qualified veterinarians available to do the regulatory work. If a substantial number of states opt to leave that part of the equation to HISA come July 1, do you have a contingency plan to make sure there is a nationwide team of vets who can do the pre-race examinations, all that necessary work?

Lazarus: You're mixing up two concepts here. There are two components with every state. One is the money assessment. The other is the voluntary agreement. While only a few states have agreed to opt into the money [assessment], we have about 80% of the states agreeing to enter into a voluntary agreement.

For a very high level of success with voluntary agreements, I'm hoping it's going to be about 90%. But we're at about 80% now. And what that means is that we're agreeing with the states…to use their state stewards to enforce the HISA rules. Otherwise, what's going to happen is that HISA is going to have to come in and hire a steward to sit alongside the state steward.

We do have plans in place for those states where we have to do that. But a few racetracks have [also] come to us and said, 'Even though our state doesn't want to enter the agreement, can we work out a deal with you, because we have these staff, we want to be able to use them?' And we've been able to work with them.

We're in the process of getting together a stewarding panel that we can ship out to different racetracks if we need to, as well as regulatory vets, which you are right, there's definitely a shortage of. We're looking at ways that we can essentially plug those shortages if we have to. But we're really hopeful and optimistic that most states are going to reach that voluntary agreement with us.

TDN: As many as 80% to 90% of states have already signed the voluntary agreement?

Lazarus: No, I'm sorry, I should have said that about 80% have said that, because we still have a few more weeks. So, the deadline for opting in [about the] money was about May 1. The deadline for the voluntary agreement is toward the end of May. We've reached agreements with a number of them, but very close to reaching agreement with the majority.

To be fair, what I'm basing that number on are the ones that we're speaking to, working through logistics, coming to an arrangement. It's my belief and understanding that with those states, it obviously shows they want to make it work. We just have a couple more weeks to kind of wrap it all up.

TDN: You do have a contingency plan to make sure that the necessary personnel will be in place for those 10%, 15%, 20% of jurisdictions that don't sign that voluntary agreement?

Lazarus: Correct.

Coady

TDN: There is a considerable amount of concern–both from people stridently against HISA and those who are wholly supportive of it–that come July 1, we won't be ready for launch. What does the industry need to do to make sure this plane lands smoothly?

Lazarus: A couple things. One is everyone needs to go on to hisaus.org and register. We will soon be launching a campaign to remind everyone that they need to do that by July 1.

The second is racetracks need to get more involved and engage with us more–and most are–but especially in those jurisdictions where the racing commissions are not working with us, particularly the states that are suing us or are less likely to work with us. In those states, that's where the racetracks need to get involved because the burden is going to fall on them, not to pay for everything, but to be the sort of [fee] collector or the place where the information is going to be disseminated.

And [lastly], do what you can to kind of help get the message out to those that maybe are less likely to be on their laptops reading about developments. The industry belongs to all of us and this is a heavy lift. Congress gave us very aggressive timelines and we're going to be ready on July 1, but you're right, we're definitely going to need help and support to make this work.

TDN: There's a lot of really busy people in this sport who just don't have the time to go onto a website and try to find information that may not always be easily accessible. Do you think your outreach could be better?

Lazarus: Yeah, for sure. And we're working on that now and there'll be a lot more outreach between now and July 1.

I cannot tell you how many groups I've spoken to and how many appearances I've made on board calls, on Zoom calls, etcetera. I do that day and night. So, I hope I've reached a lot of people that way. And I think I have.

We've created materials for jockeys that are kind of a cheat sheet guide for them, what they need to do. We've disseminated those. We have one for the trainers that's coming up very soon and we also have a social media campaign that's about to launch. So, I'm hoping that's going to do as good a job as we can expect. We still have a couple months to get the word out, and I think we're going to get there. It's moving quickly, but we're going to get there.

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Q&A with HISA’s Lisa Lazarus: Part One

DFSI has helped administer drug testing programs to a slew of human sports organizations, like the National Football League, NCAA, National Basketball Association, Ladies Professional Golf Association, the PGA Tour, NASCAR and Major League Baseball.

Last week's announcement included a new wrinkle in the enforcement side of the ADMC program: DFSI will establish the Horseracing Integrity and Welfare Unit (HIWU), led by a five-member advisory council.

To discuss DFSI's newly minted role within HISA, the evolving shape of the ADMC program and implementation of the safety program on July 1, TDN spoke with HISA CEO Lisa Lazarus. The following has been edited for brevity and for clarity.

TDN: Why did you choose DFSI as the enforcement agency over some of the other possible organizations touted?

Lazarus: The first and most compelling reason is that they have a tremendous amount of experience in drug testing and test planning. As you would know by now, they handle all of the drug testing for the NFL, for the NBA, for Major League Baseball, NCAA, PGA Tour, NASCAR. They really have a wide range of experience, and they've operated in some really very challenging circumstances.

There's going to be a heavy lift, right, to get this all done by Jan. 1. [But] the amount of testing in horse racing is going to be at around the level of what [DFSI are] doing right now, if you add all their testing together. They do more human testing than any other agency in the U.S.

Sarah Andrew

The reason why I was also really impressed with them and convinced that they could make it happen is that around the time that COVID began–and a lot of these testing agencies realized that without sport they'd be really challenged, sort of economically–was [DFSI] quickly dovetailed to COVID testing. They very quickly launched a very good and effective COVID testing program that helped bring a lot of the major sports back into operation. What they were able to show us about how they made that happen in a relatively short timeframe, how successful it was, was one of the things that convinced us that they'd be up for the job.

The other thing was the value proposition. Ultimately, it's the industry that's funding HISA, and so, we want to be sure that whatever money we're spending, we're spending efficiently and wisely. That there's a good value proposition there. We felt that they did. And they also embraced the concept that we had to create this Horseracing Integrity and Welfare Unit, which I modeled after very successful international units, like the Athletics Integrity Unit, Tennis Integrity Unit. It's been the new wave in the last five or so years, and I really love the idea of trying to make that happen for horse racing. They've shared that vision and we're happy to get behind it and support it.

TDN: The Horseracing Integrity and Welfare Unit–this five-member advisory council–what is their role exactly?

Lazarus: So, the way that it's working is that HISA has entered into a contract with the Center for Drug Free Sport, and the Center for Drug Free Sport is creating this Horseracing Integrity and Welfare Unit. There are a couple reasons why we're doing it this way.

One is the horse racing testing business essentially is so big that it really requires, we believe, its own separate entity and its own sort of separate business model. Also, DFSI did not have sufficient existing expertise in some of the areas that we required to run the program effectively…

TDN: Which areas are those?

Lazarus: Those would be prosecutions, like result management–they didn't have an existing legal staff to carry those prosecutions out. Just take a step back for one second. It's very unusual for the testing agency to also do the prosecutions–[DFSI are] not doing that for other clients. That's something we have to build separately. We [also] wanted to put a lot of resources into investigations and they didn't have sufficient in-house resources for investigations.

So, by building this integrity unit, it's allowing us to hire and bring people in that have expertise in those areas.

TDN: You've said the new unit will require 32 employees to do everything from lab accreditation to results reporting, investigation and education. So, those 32 employees will fall under the remit of the Horseracing Integrity and Welfare Unit?

Lazarus: Correct. While some of those employees are existing Center for Drug Free Sport employees that will move over, it's going to be a separate unit that operates on its own. The advisory council is essentially like a smaller board that has the expertise in each of these different pillars to help guide the full-time employees.

TDN: But ultimately it's DFSI who will sign off on whatever the advisory council suggests?

Lazarus: Yes.

Sarah Andrew

TDN: How far along are you in getting that 32-strong workforce together?

Lazarus: I would say we have about half of the key people and I expect in a couple weeks from now, we'll have all of the top people identified and agreements reached with them.

To hire the more junior workers below might take a little bit more time, but we don't expect those to be as difficult to fill–[those are] people that you need to execute the testing, some regional directors and all that. That might take us another few weeks after those two weeks, but I'm confident we're going to have everyone in place by the end of the summer.

TDN: Do you have an idea of cost?

Lazarus: If you saw the budget that was made public, you would see that there's about $5 million to $6 million in anti-doping startup costs for 2022, which also includes some tech costs, because there's various apps, things that we're going to need to build. For 2023, we don't have those costs yet because part of what we want the advisory council to help us decide is the optimum level of tests.

There are three categories of tests in horse racing. We have your out of competition, you have your TCO2 for milk shaking, and then you have regular race-day testing. We have some research and some ideas of what those numbers are optimally, but that's part of what the advisory council is going to help us decide. It'll also involve some determination around what's the right amount of money to spend on investigations. That's part of their role.

TDN: With less than two months to submit the ADMC rules to the Federal Trade Commission (FTC), specifically, what parts of the materials that U.S. Anti-Doping Agency (USADA) has put together will DFSI use?

Lazarus: Something like 90%. I mean there's only 5%, 10% where we're actually going through to make sure that we haven't missed anything, that everything is fit for purpose.

TDN: Will DFSI take a binary approach to regulating medications like USADA outlined with primary and secondary substances? Or will it look more like the Association of Racing Commissioners International (ARCI) model rules' alphanumeric system?

Lazarus: It'll be 100% only based on the [World Anti-Doping Agency (WADA)] code system, right? You saw the drafted rules and proposed rules that were based on a WADA code philosophy structure but were modified to be sensible for horses. So, that's essentially what it's going to look like. It will not be the ARCI model rules. There are some things in the ARCI model rules that are working really well, that we're going to borrow and integrate, but the system itself is going to be a WADA-based system, philosophically.

TDN: How far along are you in putting together the regulated therapeutics list?

Lazarus: That is something we hope to have together by the end of the summer. That's not something that's going to be subject to review.

TDN: Not?

Lazarus: I'm sorry, we're not going to be ready to release that list when we release the [ADMC] rules for public comment. But everything [ultimately] has to be approved by the FTC. I didn't mean to suggest that wasn't the case.

Coglianese

TDN: Some industry stakeholders have voiced concern about transparency aspects of the USADA materials. For example, “A” sample results aren't necessarily going to be made public until the “B” samples are returned. Is that something DFSI will address?

Lazarus: Yes, that's something that we're still discussing. We recognize how important transparency is. I come from the International Equestrian Federation and their system is to publish as soon as the A sample results are available. They're published unless it involves a minority, so a child, basically. That's a system I personally favor, but we're still evaluating what the right system [is] going to be for this program.

TDN: What laboratories will be used come Jan. 1? Will DFSI bring in its own set of labs?

Lazarus: No. So, the way the system is built is to allow for some fluidity so that we don't have any problem to be up and running January 1st. The law actually provides that any lab accredited by the RMTC [Racing Medication & Testing Consortium] will have a one-year provisional accreditation while we start accrediting the labs. There are nine labs that are currently accredited by the RMTC.

TDN: Does the variance in testing capability between those batch of labs pose any legal liability under this uniform banner?

Lazarus: You raise a really good question. That's something that is going to be a part of the program, which is the harmonization piece. We're going to require the labs to be harmonized, so that they [ultimately] reach agreement where screening limits are consistent from lab to lab once they're reaccredited. It would not be a success if labs had different levels of positive test assessments. If the levels or the testing had any discrepancies, that wouldn't be optimal, obviously, so that's something that we're going to work very hard at achieving.

TDN: How quickly are you hoping that harmonization process to occur?

Lazarus: Obviously as soon as possible. That's not my area of expertise. We have Dr. Larry Bowers [former chief science officer at USADA], who's going to be our resource in that regard. I don't know off my head, but obviously we're hoping to work toward it quite quickly. And we also hope that with a smaller number of labs that are accredited, that will be something achievable [without] a whole lot of difficulty or challenge.

TDN: You had talked before, prior to DFSI coming on board, about the whereabouts program being phased in over time. Is that still the case?

Lazarus: Yes, we're looking at the optimal whereabouts program. It's something that we hope we'll be able to get off the ground fairly quickly. The question is: Given that most horses are stabled at the race tracks, what does a whereabout system really need to be?

A horse that needs to be available for testing [within] several hours notice, we need to know where the horse is. But we've realized, and as we've thought through this, that for the vast majority of horses, we already have that information. So, it's going to take us a little bit of time to figure out what the best program is, but we do expect to have one within the first couple years.

Coady

TDN: 5 Stones intelligence (5Si) is going to be bought on board as an investigative body. What layers of transparency will surround the investigative work that 5 Stones does to make sure that that work will hold up legal scrutiny?

Lazarus: The first thing I'll say is that the reason why we thought it just made a lot of sense to involve 5 Stones–and they were eager to be supportive–is that there already are entities like The Jockey Club [and] The Meadowlands that have spent considerable amount of funds to have 5 Stones investigate actors in racing. So why wouldn't we want to take the benefit of their knowledge, their research, their information base to help us?

From my standpoint, with regards to the Horseracing Integrity and Welfare Unit, our job is not to prosecute actors, or to make sure things stand up in court. The way that we'll use the investigative resource is to try to help us figure out who the cheaters are and what they're using and when to test them and for what. And that's how we'll mostly use the investigative resource.

Obviously, if they're used for prosecutions, I think they're fairly capable and also experienced at making sure that evidence is strong. But for us, it's really about getting the information that allows us to test in a way that's really efficient.

If you test humans, horses, anyone without that investigative resource, you usually have about 1% to 2% hit rate in terms of positive tests. When you use investigative resources, that goes up to 15% to 20%. So, it's a huge difference.

TDN: It's been discussed how a centralized database could be used to identify outliers, potential cheats and whatnot, as well as to help with the safety side of things. How far along is that database from being fully built and operational?

Lazarus: In one way we're far along and one way we're not far along at all.

We've already started the process of registering horses, so the database is live, it's available. If you go to our website, you could register yourself and your horses. But we don't have a huge body of data yet because the registration processes just started in the last couple of weeks.

However, come July 1, if you want to participate in the covered horse race, which is in any horse racing jurisdiction that exports their signal, then you'll have to register with us. So, we expect, in a few months, to have a very considerable database. Then we'll let the veterinary experts help us figure out how to use it in a way that's going to help horses, help keep everyone safe.

TDN: Do you have a rough date with which you'd like to see something really substantive up, a close approximation of an ideal end goal for this database?

Lazarus: I think a year from July 1 [2022]–which is our deadline [for implementation]–we'll be in a position to really have the data that we need to perform the sort of analysis that we think will make a difference. Two or three years down the line, it'll be even better.

Note: Part two of this Q&A will encompass the working relationship between the Authority and DFSI, media criticisms of the new enforcement agency and potential problems when HISA launches in less than two months.

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HISA Tabs Drug Free Sport International as Enforcement Agency Partner

Edited Press Release

The Horseracing Integrity and Safety Authority's (HISA) Board of Directors has selected Drug Free Sport International (DFS) to build HISA's independent Anti-Doping and Medication Control (ADMC) enforcement agency. The decision followed months of discussions with several potential enforcement agencies and marks another major milestone in the implementation of the Horseracing Integrity and Safety Act.

HISA sought out DFS given its history of drug testing and enforcement partnerships with leading sports organizations, including the National Football League, NCAA, National Basketball Association, Ladies Professional Golf Association, PGA Tour, NASCAR and Major League Baseball. DFS will establish the Horseracing Integrity and Welfare Unit (HIWU), led by a five-member Advisory Council, to serve as the new ADMC enforcement agency for Thoroughbred racing.

“I am thrilled that Drug Free Sport International is partnering with us to serve as HISA's independent ADMC enforcement agency by establishing the Horseracing Integrity and Welfare Unit,” said HISA CEO Lisa Lazarus. “DFS is an established leader as demonstrated by its success and ongoing engagement with several U.S. and international sports organizations and leagues. HISA and HIWU intend to work closely with state racing commissions to establish a comprehensive and robust program that includes uniform testing protocols, adjudication processes and enforcement mechanisms to increase accountability and enhance the integrity of the competition for participants, fans and bettors.”

“We look forward to working with DFS and the Horseracing Integrity and Welfare Unit to level the playing field for the overwhelming majority of racing participants who follow the rules while identifying and holding accountable those who attempt to violate them,” said Adolpho Birch, Chair of HISA's ADMC Committee and Senior Vice President of Business Affairs & Chief Legal Officer for the NFL's Tennessee Titans. “HISA also recognizes and thanks Travis Tygart and USADA for their collaboration and leadership in crafting the proposed regulations that will serve as the foundation for our work moving forward. Together with their efforts leading to the passage of HISA, they have left an indelible mark on horseracing and horse welfare.”

“On behalf of the entire DFS team, we are excited to expand our work to safeguard the integrity of sport into thoroughbred racing,” said Chris Guinty, CEO of DFS. “Creating a new enforcement agency is a significant task, but we are starting from a strong position thanks to the efforts of so many to date.”

The HIWU will be chaired by Jonathan Taylor QC, a London-based partner and leader of the Sports Group at the international law firm Bird & Bird. Taylor has a deep and extensive background in anti-doping issues in international sports, including previously serving as the chair of the World Anti-Doping Agency's (WADA) Compliance Review Committee, an independent Standing Committee under WADA's Executive Committee. Taylor is also long-standing outside legal counsel to the International Equestrian Federation and the British Horseracing Authority.

“I'm honored to be joining Lisa, Adolpho and the entire HISA team as they work with DFS to develop and implement the first-ever national uniform anti-doping and medication control standards for Thoroughbred racing. These standards will meaningfully enhance the integrity of U.S. horse racing and help to ensure a robust future for the sport for generations to come,” said Taylor.

In addition, HISA announced the appointment of four other members of the HIWU Advisory Council, including:

Larry Bowers, former Chief Scientific Officer at USADA; during his time at USADA, Dr. Bowers played a significant role in developing the first ever WADA International Standard for Laboratories and established research funding programs for both USADA and the Partnership for Clean Competition. Prior to joining USADA, Dr. Bowers made groundbreaking contributions to anti-doping science.
Larry Bramlage, DVM, MS, DACVS, equine orthopedic surgeon at Rood & Riddle Equine Hospital; Dr. Bramlage serves on the board of the Grayson-Jockey Club Research Foundation and has received numerous awards, including the American College of Veterinary Surgeons Legends Award, The Jockey Club Gold Medal and a British Equine Veterinary Association's Special Award of Merit, for his work.
Sonja Keating, General Counsel, United States Equestrian Federation (USEF); Keating has been with USEF for more than 15 years and previously practiced litigation in the Lexington office of Dinsmore & Shohl, LLP.
Günter Younger, Director of Intelligence and Investigations at WADA; prior to joining WADA, Younger served as the Head of the Cybercrime Division at the Bavarian Landeskriminalamt (BLKA), in Germany. During this period, he also served on WADA's three-member Independent Commission that investigated and exposed widespread doping in Russian athletics.

It is expected that the investigative function will be supported by 5 Stones intelligence, a leading professional services company comprised of former DEA, FBI, IRS, ATF, and NYPD Special Agents and Detectives who have led some of the largest sports investigations in history. Information from 5 Stones played a role in the federal indictments of several dozen people involved in horse racing by the United States District Attorney, Southern District of New York.

“We are deeply grateful to the members of the HIWU Advisory Council and to 5 Stones for lending their expertise and hard-won experience in support of our effort,” said Lazarus.

Working extensively with USADA and a wide range of industry stakeholders, HISA has already developed comprehensive draft ADMC rules. HIWU and HISA will build on that foundation in the coming weeks and will release updated draft rules for industry and public comment later in May. The draft rules will be presented to the HISA Board of Directors for approval and then submitted to the Federal Trade Commission (FTC) by July 1 to initiate its rule-making process with the goal of implementing the FTC-approved program on January 1, 2023.

Statement from Breeders' Cup Ltd:

“Breeders' Cup strongly supports HISA entering into an agreement with Drug Free Sport International (DFS) to build their independent Anti-Doping and Medication Control enforcement agency. DFS has a long track record of success in drug testing and enforcement at the highest levels of professional sports, including the NFL, NBA, MLB, PGA Tour, LPGA, NASCAR and NCAA, and they will help HISA protect the health and safety of equine athletes and enhance the integrity of racing. We are greatly encouraged by the formation of the new Horseracing Integrity and Welfare Unit (HIWU) and by the exemplary Advisory Council chosen to lead it. From its beginnings, HISA has shown professionalism and leadership, and today the Authority continues to take critically important steps forward in fulfilling its mission. We look forward to the law's full implementation in 2023.”

Statement from National Thoroughbred Racing Association:

“Drug Free Sport is a known leader in drug testing and enforcement in sports and we are thrilled to see HISA partner with this expert organization to operationalize their Anti-Doping and Medication Control program and create the Horseracing Integrity and Welfare Unit,” said NTRA President & CEO Tom Rooney. “We all share HISA's goals of protecting equine athletes and raising the bar for integrity in racing, and with the help of DFS, HISA is well on its way to doing just that. I commend Lisa Lazarus and the entire HISA Authority on all their hard work and due diligence in meeting this important milestone under the law.”

Statement from The Jockey Club:

“The Jockey Club applauds today's announcement from the Horseracing Integrity and Safety Authority (HISA), which named Drug Free Sport International (DFS) as the organization to develop HISA's Anti-Doping and Medication Control enforcement agency. DFS has an impressive track record in handling drug testing management in a range of sports, and its partnership with HISA is another critical step toward creating a gold standard of integrity and welfare in Thoroughbred racing. The Jockey Club has believed for years that reforms in safety, integrity, and welfare are necessary for the sustainability of our sport. We look forward to following the progress of DFS and supporting the efforts of DFS and HISA with any resources we can provide.”

Joint Statement by Thoroughbred Horsemen's Associations, Inc, Kentucky Thoroughbred Association, Thoroughbred Owners and Breeders Association:

HISA represents a critical turning point for the industry. Its implementation provides the best opportunity for us to change the perception of our sport through our collective efforts to protect the health, safety and welfare of the horse and rider and the integrity of horse racing.

We commend the HISA Board for its deliberative approach towards the establishment of the most practical and effective Anti-Doping and Medication Control Program of any sport. HISA's partnership with Drug Free Sport International, and the creation of the Horseracing Integrity and Welfare Unit, fulfills the industry's need for an effective, independently controlled enforcement agency that will build upon and improve Thoroughbred racing's well-established medication and anti-doping rules, bring long-sought uniformity, oversee and improve our testing system, implement a streamlined, but fair adjudicatory process, and develop a new investigative arm that the industry once had but lost.

While some may be disappointed with HISA's decision, we believe it is entirely consistent with the enabling legislation and the intent of those who were responsible for its development. We look forward to working with the DFSI team and the HISA Board and will offer whatever resources and support we can to fulfill the fundamental goals of equine health and safety and the integrity of racing.

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HISA Under Discussion at ARCI Conference’s Tuesday Session

LEXINGTON, KY–The Horseracing Integrity and Safety Act (HISA) was a popular topic of discussion on Tuesday at the Association of Racing Commissioners International's (ARCI) 88^th Annual Conference on Safe Horses and Honest Sport.

Early in the day's session, a panel was held on the potential legal issues that could arise with the implementation of HISA. John Roach, HISA's general counsel, joined panelists Nolan Jackson and Joel Turner of Frost, Brown, Todd, LLC.

The first issue examined concerned HISA's possible qualification as a Federal Advisory Committee Act (FACA), a federal law that places special emphasis on open meetings, public involvement and reporting. The legal implications of if HISA does qualify could mean that its authority would be required to give advanced notice of its meetings and make meetings available to the general public. Jackson said that HISA's authority appears to have taken the position that FACA does not apply.

“It's important to note that HISA has not complied with the Federal Advisory Committee Act, at least not up until this point in time,” he explained. “Perhaps that is because FACA is fairly narrow in scope. It only applies to advisory committees that are established by law or utilized by the federal government in some way. It only applies to federal advisory committees that exist to provide advise or recommendations to the federal government, generally meaning the President or a federal agency of some kind.”

The second issue put forward during the panel focused on the six-month limbo period later this year concerning HISA's anti-doping and medication control policies.

While HISA's Racetrack Safety Program is scheduled to go into effect on July 1, 2022, yesterday HISA CEO Lisa Lazarus said they will be making an announcement about an agreement with an enforcement agency for the Anti-Doping and Medication Regulation Control (ADMC) program by next month and hope to launch the program on January 1, 2023. While she said yesterday that until then, states would continue with their own oversight, several legal questions were brought up in the panel regarding potential issues that could arise for state regulators.

“I think we have a couple different issues here,” Turner said. “First, HISA has not promulgated the rules yet, so you [regulators] are scratching your heads and asking what happens after July 1. Second, there's a statement [within the act] of exclusive and independent jurisdiction that would seem to raise the question about whether or not you can continue to regulate on a state-by-state basis.”

Turner emphasized HISA's burden to create a detailed anti-doping and medication regulation program in the short period since Congress passed the bill enabling HISA in December 2020.

“Under the circumstances, I think it's very understandable why we haven't gotten to the point where we have medication and anti-doping rules,” he said. “They're very complex to begin with and to get consensus on those rules can be very challenging. I'm looking at it from the perspective of an owner or trainer that is charged with a medication violation after July 1. What is the lawyer going to tell them about how he can defend that case? In this instance, we really have a gap.”

“The problem is that the authority's jurisdiction as defined in the act is really broad,” Jackson later added. “The act talks about national, exclusive, independent jurisdiction on the part of the authority. It leaves little room for states to think about what they're left to address. I think that while HISA has taken the position that states are able to continue enforcing their rules beyond July 1, there is an expressed preemption clause in the act, albeit specific, that could be an obstacle if this were to come up in litigation.”

While Jackson and Turner expressed their opinion that there was a definite gray area for regulators regarding anti-doping and medication regulation within the later half of this year, Roach said he believed the matter was much more clear cut, stating that HISA has taken the position that they will not preempt until they act.

“As it relates to the preemption issue, the text in this statute is pretty clear to me,” he said. “We do not preempt your laws until we promulgate regulations that are approved by the Federal Trade Commission. If we have not promulgated, you are free to continue to do what you are doing.”

Roach used the example of regulations regarding the riding crop to explain further. On July 1, HISA standards regarding the riding crop will go into effect because they are addressed in the Racetrack Safety Program. Other issues concerning safety on the racetrack that are not addressed in HISA's new regulation–in his example he mentioned drunkenness on the backside–will be left for the states to take on themselves.

Roach pointed out the advantages for state regulators once the ADMC program does go into effect as cases begin going through HISA's appeal system.

“When we talk about cases in the news for drug violations that have gone on for over a year, once HISA is up and running, the state courts have no more role,” he explained. “We will have a consistent approach and from a legal standpoint, you're not going to have to worry about injunctions in all different kinds of state courts. The one assurance I can give you, whether it's with lawsuits filed or any kind of legal issue, we are hiring the best that we can find to help us make sure we can implement this act in a way that can be defended at every point because we know how important it is to this industry.”

Roach later added that if an issue does arise in a state before January 1, 2023, HISA and possibly the Federal Trade Commission would be available to extend their assistance.

Later in Tuesday's session Steve Keech, HISA's Technology Director, gave a presentation on HISA's database registration process. The database is in the works now but has no set launch date. It will include data on horses and industry participants involved in 64 different racing-related occupations.

Keech gave an overview on how an owner will register within their system and he also explained that the system will link with other databases such as Equibase and InCompass Solutions. The database will include information on every horse in the system, from their current location and vaccination record to when they were last on a vet's list.

The 'Q and A' section of Keech's session led to much discussion on what this data would be used for and what would happen if an individual did not register. Attendees raised questions regarding how grooms would know to register, noting the current challenges behind getting backside workers appropriately licensed. They also asked who would be a responsible if a groom did not register.

Lazarus jumped in to explain that their authority is aware of and working through these issue. She said HISA will soon be launching a communication campaign to spread the word and that they have already asked several jockeys for help in advising on how to make the registration process user friendly. Lazarus explained that the program will also be offered in Spanish and said that no one will be responsible if an individual is not registered, instead it will become a question of whether or not they will be able to participate and be allowed onto the backside.

The ARCI convention continues April 13 with several presentations including an analysis of the pending federal court challenges to HISA.

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