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Landry To Deliver Keynote Address at National HBPA Conference

Edited Press Release

Louisiana Attorney General Jeff Landry will be the keynote speaker at the National HBPA's annual conference Mar. 6-10 at the Hotel Monteleone in New Orleans' historic French Quarter, the horsemen's organization announced. The conference, being hosted by the Louisiana HPBA, takes place in conjunction with the Association of Racing Commissioners International (ARCI) Annual Meeting and Racing Integrity Conference.

Landry's keynote address is to be delivered Mar. 7. He has been at the forefront of states challenging the constitutionality of the Horseracing Integrity and Safety Act (HISA) and the Horseracing Integrity and Safety Authority (Authority) that the law established. In addition to constitutionality issues, Landry has expressed concern for the financial hardship that a largely duplicative bureaucracy will put on large portions of the horse-racing industry. Louisiana has four tracks that conduct horse racing.

“I am honored to be chosen the keynote speaker at the National HBPA Conference, and I look forward to visiting with so many who ply their trade in such a great industry,” said Landry, a decorated Army veteran. “I will continue fighting for them to prevent the federal government from taking over horse racing.”

Added National HBPA CEO Eric Hamelback: “Louisiana Attorney General Jeff Landry embodies the positive vision with the inspiration and passion we seek in a keynote speaker. He has proven to be a strong advocate for horsemen and women who understands our labor-intensive industry with its substantial agribusiness, not only in Louisiana but throughout the country. He believes in a bright and better future for horse racing, and refuses to let us be trampled by special interests.”

More information and registration is available here.

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Letter to the Industry: HISA Calls on Horsemen to Work with US to Advance Shared Goals

by Charles Scheeler, HISA Board of Directors

The Horseracing Integrity and Safety Authority, or HISA, was created by Congress in 2020 to implement, for the first time, uniform nationwide safety and integrity rules to govern Thoroughbred racing in America. It represents a once-in-a-lifetime opportunity to reform a sport that in recent years has seen criminal conduct at its highest levels and welfare concerns about horse and rider safety that have raised questions about its viability.

Some horsemen have recently expressed a desire to scrap the substantial progress made over the last two years and start from scratch on safety and integrity reform. But after failing for decades to create uniform standards, we've finally made real progress and have momentum. In fact, early indications suggest that racing is already getting safer for horses. Starting over would be to risk losing all of that.

Unfortunately, there has been a great deal of misinformation being shared about HISA's rules, including in a recent letter issued by the Horsemen's Benevolent and Protective Association (HBPA). As Chair of HISA's Board of Directors, and someone who has previously been involved in transformational reform efforts in other sports, I'm pleased to have this opportunity to set the record straight.

HISA's drug testing program will protect good-faith horsemen.

HISA's draft Anti-Doping and Medication Control (ADMC) rules do exactly what the HBPA's letter claims horsemen want them to do: establish entirely separate categories for permitted substances (i.e. Controlled Medications) that are allowed outside of the racing period and doping substances (i.e. Banned Substances) that should never be in a horse. The rationale is to severely penalize those who use Banned Substances, while being sensible and proportionate when it comes to accidental medication overages–and to prioritize clear, transparent, and fair due processes in either case. HISA also provides those charged with a chance to tell their side of the story via hearings and multiple appeal rights. The HISA policy is built to catch cheaters, not to victimize good-faith horsemen.

Additionally, for the first time ever, labs across the country will be testing for the exact same substances at the exact same levels. HISA's testing program will only report positives that have the potential to impact the horse's system. Rumors that insignificant picograms or environmental contaminants will always result in a positive test under HISA's rules are entirely untrue.

The type of drug abuse we are trying to eliminate was on full display when more than two dozen arrests were made in 2020. It took outside investigators and the FBI to catch those cheaters because racing's outdated state-by-state system was unable to do so. HISA will change this.

HISA's rules specifically seek to protect small racetracks and racing jurisdictions.

The HBPA's letter erroneously implies that costs associated with HISA could lead to the demise of small racetracks. On the contrary, HISA's rules specifically take small racetracks' challenges into account by requiring those with higher purses to contribute more financially than those with lower purses.

HISA has consistently sought feedback from horsemen across the country and continues to do so.

All horsemen's groups–including the HBPA–received drafts of all proposed rules and had the opportunity to comment on them before they were submitted to the Federal Trade Commission. In fact, horsemen's groups did submit feedback, much of which was then incorporated into the draft rules. HISA continues to seek feedback–formally and informally, including via our Horsemen's Advisory Group, made up of trainers, owners, veterinarians and farriers from across the country.

Where issues around HISA's rules have arisen, we have consistently engaged with racing participants to remedy them. HISA's shoeing rule changed this past summer based on industry feedback, and we are currently working closely with the Jockey's Guild on possible revisions to HISA's crop rule.

Getting a federal law passed was a monumental accomplishment, and the progress and momentum since then has been astounding. Thoroughbred racing must take advantage of this moment. Change can be uncomfortable and often comes with growing pains, but the future of the sport depends on its evolution. Let's find the courage to do this together.

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Op/Ed: The Status Quo is Not An Option

Over the last few months, I have read and heard numerous concerns about HISA's involvement in the thoroughbred industry. Purported issues range from, “we don't need the government in our business” to, “these new rules are too burdensome,” to “they should have asked horsemen to be involved in the rulemaking.”

I believe most of those complaints come from a place of misunderstanding about what HISA is trying to accomplish and also how imperative it is to our livelihood that we have a centralized set of rules.

As someone fortunate enough to be in direct communication with HISA, I wanted to take a few minutes to provide you with my insight.

First and foremost, HISA's biggest concern is the welfare of the HORSE, thus the reason for better health records, vaccinations, etc. I understand those requirements are burdensome and adds extra administrative work to our plates. As a trainer of a large training operation racing in two countries, I personally can attest to the difficulties of collecting this type of data. However, the rationale behind this is to protect you as a trainer, the one who has ultimate responsibility for the actions of the employees in your shed row.

Let's also address the new testing procedures. What excites me the most about HISA is the way the new testing procedures will be conducted, with one collective set of rules (versus running with different rules from state to state and sometimes from track to track). Included in this unified rule set is that drug positives will no longer be treated as “black and white.” The Horse Integrity Welfare Unit has the authority and flexibility to decide if a positive sample occurred via trace contamination. Trainers will avoid paying fines and getting suspended over environmental contagions. The new rules should also relieve trainers of being falsely accused and sentenced in the court of public appeal. The goal is to also simultaneously deter true cheaters, who will now be admonished quickly and decisively.

I recently attended my second advisory board meeting for HISA and came away from it more convinced than ever that it's what we as a sport, need to not only prosper but, to survive. We cannot continue to let cheaters be rewarded. We have seen two of the biggest names in our game charged for not playing by the rules. In my opinion that is just the tip of the iceberg. Anyone who believes that our industry doesn't need cleaning up doesn't live in reality.

Here's the unfortunate reality of our sport: The public is losing faith in our product, our foal crop is shrinking, we are politically toxic, influential non-profit organizations are publicly protesting outside our gates, and racetracks are closing. So if we want our business to continue for another generation, we need to change. If you have a better option and/or actual strategies on how to improve the system, I am all ears. Call, text, email or grab me by the arm the next time you see me-I relish the opportunity to make our sport better.

Unlike what some people think, the status quo is not an option to enable our industry to survive.

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FTC Delays Implementation of HISA’s Drug and Doping Program

In an order Monday, the Federal Trade Commission (FTC) announced that the Horseracing Integrity and Safety Act's (HISA) anti-doping and medication control (ADMC) program would not go into effect as scheduled Jan. 1 due to swirling legal uncertainty.

“The bedrock principle of the Act is the need for uniformity,” wrote the FTC in the order, adding that “the Commission's approval of the Anti-Doping and Medication Control proposed rule would not result in uniformity because the Horseracing Integrity and Safety Act has been held unconstitutional by a panel of the United States Court of Appeals for the Fifth Circuit.”

Oral arguments similarly surrounding HISA's facial constitutionality were held last week in a separate case before the Sixth Circuit Court of Appeals.

“The Commission therefore disapproves the proposed rule without prejudice. If the legal uncertainty regarding the Act's constitutionality comes to be resolved, the Authority may resubmit the proposed rule or a similar rule, and the Commission will consider all comments filed in this proceeding as well as any updated or new comments and filings.

“In the meanwhile, and until any future proposed rule on the subject is approved by the Commission, State law will continue to regulate the matters that the proposed rule would have covered,” the order states.

According to HISA's CEO Lisa Lazarus, who held an impromptu press conference Monday afternoon, this means that the current regulatory “status quo” will remain in place at the start of 2023.

“They made reference to the fact that, since the FTC has not approved any ADMC rules under HISA's authority, that means all the state rules remain in full force and effect,” said Lazarus, stressing that this was her “interpretation” of the FTC order.

“If there wasn't a clear statement on this issue quickly, then we might get to Jan. 1, and there might be some uncertainty around who actually has the authority. It's important for the states to know now that they're going to continue to be the ones in charge of testing on Jan. 1,” Lazarus added.

When it comes to the financial implications from Monday's announcement, HISA will refrain from collecting any of the 2023 fee assessments, designated for the individual states or, alternately, the racetracks, said Lazarus.

“The vast majority of those fees relate to the anti-doping program,” said Lazarus, explaining that the 2023 fees will be collected once the legal uncertainty has been resolved.

“There are still assessments being paid for 2022 that obviously are still required for the state racing associations who opted in, and the racetracks to cover, because those costs have already been incurred, or are in the process of being incurred,” she added.

Ben Mosier, executive director of the Horseracing Integrity & Welfare Unit (HIWU), the enforcement arm of HISA's ADMC program, released a statement explaining that HIWU will continue its education and outreach efforts “to all stakeholders in the Thoroughbred industry,” despite the delay in implementation.

“As HISA re-submits the draft ADMC rules for the FTC's approval, HIWU will use any additional time before implementation as an opportunity to ensure the industry is even more prepared for an efficient rollout of this Program, which will promote fair competition in the sport of Thoroughbred racing and the safety and welfare of our human and equine athletes,” wrote Mosier.

According to Lazarus, “So long as that preparatory work doesn't extend beyond two to three months, [HIWU's work] would still be covered by the 2022 budget.” However, “if it extends longer, we would have to revisit that issue.”

As for potential timelines moving forward, Lazarus explained that once the ADMC rules have been resubmitted with the FTC, it would take approximately 60 days for them to then go into effect, “assuming that the FTC was going to approve them substantively.”

Lazarus also broached a number of different scenarios in what appears to many in the industry a swirling morass of unpredictability and confusion.

Last month, the Fifth Circuit Court of Appeals found the law facially unconstitutional due to the lack of rule-making authority ceded to the FTC. That mandate is set to go into effect Jan. 10.

But if HISA is able to secure a stay on the Fifth Circuit's ruling in the interim, “we would then go back to the FTC [with the ADMC rules] and seek approval on that basis,” said Lazarus.

A similar case questioning HISA's constitutionality is also before the Sixth Circuit Court of Appeals. According to Lazarus, a ruling in the Sixth Circuit is expected “in the next month or two.”

If the Sixth Circuit issues a ruling favourable to HISA, “it would potentially give us the ability to continue with our program in those jurisdictions the Sixth Circuit covers,” said Lazarus.

“And it would also potentially lead to the [U.S.] Supreme Court hearing the case,” said added.

Nevertheless, even if the Sixth Circuit issues a friendly ruling on HISA, the FTC still might prove reluctant to allow HISA's ADMC to go into effect in those jurisdictions as the new law wouldn't be implemented uniformly, said Lazarus.

“For that reason, it's very possible the FTC would maintain the position that we shouldn't resubmit our rules until we have clear ability to move forward and launch across the whole country,” said Lazarus.

Another potential fix to the current knot of legal problems is a congressional re-write of the rules to cede more rule-making power to the FTC. Lazarus declined to speculate on the likelihood and possibility of that option.

A number of experts have questioned whether the legal uncertainty surrounding HISA's constitutionality puts into jeopardy the law's racetrack safety rules, already in effect. Lazarus said that Monday's order has no effect on the racetrack safety prong of the program.

“This related solely to the ADMC rules, and also, it was not a substantive review,” said Lazarus. “It was a statement on their perspective with regards to the legal uncertainties and ensuring there's clarity before we launch the new program.”

Ed Martin, the Association of Racing Commissioners International's (ARCI) president and CEO, referenced a letter the organization sent last week to the FTC highlighting “a real Catch-22” come Jan.1 concerning the legality of HISA's ADMC program.

“We are appreciative that the FTC listened and considered the request of the Association of Racing Commissioners International not to create regulatory uncertainty on Jan. 1 by approving the proposed HISA rules,” Martin told the TDN.

“Whoever got brought up on a charge could potentially have appealed it ad nauseam, and maybe win, which means there might be no rules in effect. That was the danger here,” Martin speculated. “They might be mad at me for bringing it up, but it needed to be brought up.”

The following is HISA's full statement in response to the FTC order:

“HISA appreciates the Federal Trade Commission's (FTC) decision to deny HISA's draft Anti-Doping and Medication Control (ADMC) rules without prejudice as we actively seek to resolve current legal uncertainties. HISA is eager to launch Thoroughbred racing's first and long-awaited national, uniform ADMC program and stands ready to do so. We will re-submit the draft ADMC rules to the FTC for their review as soon as these legal uncertainties are resolved, and once approved, we will implement the program through the Horseracing Integrity and Welfare Unit (HIWU). In the meantime, HIWU will continue to work toward the implementation of a uniform, independent anti-doping and medication control program that is administered consistently and fairly across the United States.”

In a statement, National HBPA CEO Eric Hamelback wrote, “The recent FTC decision is another positive step forward for horsemen in our battle against the unconstitutional takeover of our industry. The strength of our legal arguments led to a unanimous decision in the Fifth Circuit, and now the FTC has done the right thing in declining to defy a federal court that has found HISA unconstitutional. The FTC order is clear: state law continues to govern medication issues until our final victory in this case.”

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