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Louisiana Joins Lawsuit Seeking To Derail Horseracing Integrity And Safety Authority

The state of Louisiana has joined a federal lawsuit challenging the constitutionality of the Horseracing Integrity and Safety Act of 2021 that would create a national regulatory oversight board for medication and safety issues in Thoroughbred racing.

The legislation passed both Houses of Congress as part of an omnibus spending bill late last year and was signed into law by then-President Donald Trump. It creates an independent, non-governmental agency, the Horseracing Integrity and Safety Authority, which is expected to contract with the U.S. Anti-Doping Agency. The Federal Trade Commission is charged with reviewing the Authority's policies.

Louisiana joins two other states, Oklahoma and West Virginia, in challenging the constitutionality of the Horseracing Integrity and Safety Act and seeks an injunction to prevent the Authority from assuming its responsibilities by July 2022, as required by the law. That suit, which also includes the United States Trotting Association as a plaintiff, was filed in April.

Louisiana Attorney General Jeff Landry issued the following statement concerning the decision to join the suit:

“HISA requires the unelected Authority to exercise regulatory authority over horseracing in Louisiana, mandates our State to assist the Authority, and forces us to choose between remitting funds to the Authority or losing some of our powers of taxation. This violation of the Tenth Amendment would have devastating effects to our State and the thousands of Louisianans in the horse industry,” said Landry.

“While I believe that horses should be treated humanely and horseracing should be held to the highest degree of integrity, I know that more bureaucracy from an overreaching and unaccountable fiefdom is not the way to achieve these goals,” Landry continued. “We should continue our Legislature's decades-long delegation of police powers over the industry to the Louisiana State Racing Commission, knowledgeable participants who have collected significant fees and taxes while enforcing our statutes and regulations concerning the health and safety of equine athletes and all other industry participants throughout Louisiana.”

The Louisiana Horsemen's Benevolent and Protective Association, which already joined an earlier suit filed by the National HBPA and several affiliates, issued a statement by its president, Benard Chatters.

“The actions of Attorney General Jeff Landry in opposing the HISA law demonstrates his genuine concern for the well-being of the Louisiana horse racing and breeding industry and its participants throughout the State as well as our equine athletes,” Chatters said.

“The Louisiana Horsemen appreciate and respect the unwavering support of Attorney General Jeff Landry, which he has consistently shown to the Louisiana horse racing and breeding industry throughout our State,” said Ed Fenasci, executive director of the Louisiana HBPA.

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Congressmen File Amicus Brief In Support of HISA

The lead congressional sponsors of the Horseracing Integrity and Safety Act (HISA), Senator Mitch McConnell (R-KY) and Representatives Andy Barr (R-KY) and Paul Tonko (D-NY), have filed a 14-page amicus ('friend of the court') brief in response to a lawsuit filed by the National Horsemen's Benevolent and Protective Association and some of its affiliates, challenging its constitutionality.

The brief lays out the reasons why HISA is necessary to protect and preserve the future of horse racing, deliberations in Congress over the course of several years that included input from all sectors of the horse racing industry–which resulted in broad, bipartisan support for the bill–and the reasons why HISA is, in fact, constitutional. HISA was signed into law by President Trump in December 2020.

“The National Thoroughbred Racing Association (NTRA) commends Sen. McConnell, Rep. Barr and Rep. Tonko for their forceful defense of the Horseracing Integrity and Safety Act of 2020,” said NTRA President and Chief Executive Officer Alex Waldrop. “The need for a national body to enforce stringent integrity and safety standards for Thoroughbred racing has never been greater. Organizations and individuals representing virtually every segment of our industry are committed to working cooperatively with the HISA Authority and its standing advisory committees to assist the Authority in carrying out its federal mandate to propose to the Federal Trade Commission for that agency's adoption an innovative, affordable federal regulatory system that prioritizes first and foremost the safety of horse and rider and the integrity of our sport.”

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McConnell, Barr, Tonko File Brief Asking Court To Dismiss HBPA Lawsuit Against Horseracing Integrity And Safety Act

Attorneys representing three Congressional proponents of the Horseracing Integrity and Safety Act (HISA) have filed an amici curiae brief in support of a motion by defendants to dismiss a federal lawsuit by the National Horsemen's Benevolent and Protective Association and several affiliates alleging that the federal law establishing national oversight on medication and safety policies for horse racing is unconstitutional.

Attorneys Eric Grant of Texas and Paul E. Salamanca of Kentucky submitted the “friend of the court” brief on behalf of Kentucky Sen. Mitch McConnell, who pushed for the passage of HISA as part of omnibus funding bill in December while serving as Senate majority leader; Kentucky Rep. Andy Barr; and New York Rep. Paul Tonko. Barr and Tonko were the primary sponsors of HISA in the House of Representatives. The bill was signed into law by former President Donald Trump.

The brief pushes back against a partial motion to dismiss from HBPA attorneys filed April 30 seeking the court to declare HISA unconstitutional and order an injunction preventing the Horseracing Integrity and Safety Authority, the agency created by the law, from operating as a national oversight body.

The three points of contention countering the HBPA position is that 1) HISA is vital legislation; 2) HISA is the result of extensive legislative deliberation; and 3) HISA is structurally constitutional.

The brief argues that the racing industry recognized that an “acute safety crisis was creating an existential crisis of public confidence” and that HISA was Congress' response to that crisis.

“HISA's mandate to create national, uniform equine health and safety rules is vital to the stability and growth of horseracing,” the brief reads. “Like any regulatory regime, not everyone agrees with HISA's objectives or the means by which the statute achieves those objectives. But the question for this court is only whether Congress had an adequate and legitimate basis for enacting HiSA.”

On the second point, the brief explains the history of previous efforts to pass legislation similar to HISA, with numerous Congressional hearing taking place over the last decade, including one in 2018 and another in 2020. Among the 14 witnesses who testified in the latter two hearings, the brief contends, were four opponents of the legislation, including the CEO of the National HBPA.

The HBPA alleged in its lawsuit that HISA passed the House of Representatives on a voice vote with no debate and that it was never discussed in committee or on the floor of the Senate.

The final point of the brief states that HISA is structurally constituted and modeled on the Maloney Act, which authorized the Financial Industry Regulatory Authority (FINRA) to regulate federal securities markets. FINRA is under the auspices of the Securities and Exchange Commission, which can approve, reject or modify its policies.

Similarly, HISA will operate under the auspices of the Federal Trade Commission, which can approve, reject or modify policies. As a private entity, HISA would “propose, not promulgate” rules to the FTC, according to the brief.

“For the foregoing reason,” the brief states, “this court should grand defendants' motion to dismiss (the lawsuit).”

The McConnell-Barr-Tonko brief was not the only one submitted to the court. The North American Association of Racetrack Veterinarians (NAARV) filed a brief contending that the establishment of the Authority would deny due process to its members.

The suit was filed in U.S. District Court for the Northern District of Texas, Lubbock Division.

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Feds: HBPA ‘Jumped the Gun’ in HISA Lawsuit

Federal attorneys want the National Horsemen's Benevolent and Protective Association (HBPA)'s anti-constitutionality lawsuit thrown out of court, arguing that the HBPA's allegations of injury regarding the Horseracing Integrity and Safety Act (HISA) “are entirely threadbare” because no rules, regulations or fees have been established by the not-yet-in-effect regulatory body.

“Plaintiffs jumped the gun bringing this constitutional challenge,” the federal government stated in an Apr. 30 motion to dismiss filed in United States District Court for the Northern District of Texas. “Their complaint questions the validity of a law that currently subjects them to no obligation or penalty.”

The filing continued: “Neither the Federal Trade Commission (FTC) nor the [HISA] Authority have even proposed rules that they could endeavor to enact. There has been no proposal for rules regarding permissible and impermissible drugs; no proposal for rules regarding racetrack safety; and no proposals for rules regarding enforcement procedures or penalties…There has not even been a rule crafted to govern how the Authority is to 'propose' any rules to the FTC–which is all fitting, given that HISA is only four months old.”

In March, the HBPA, with the support of 12 of its state chapters, sued 11 individuals in connection with their official capacities related to the FTC and HISA's not-yet-active Authority. The HBPA claimed that the law, “unconstitutionally delegates to a private entity the legislative authority to regulate” the sport, and asked the court to “declare HISA unconstitutional and preliminarily and permanently enjoin Defendants from implementing and enforcing the law.”

The feds have responded that the HBPA has it wrong: The bill that got signed into law in December “merely creates a framework for the FTC, with the subordinate aid of the 'private, independent, self-regulatory, nonprofit' HISA Authority to enact future standards and rules.

“Congress established this framework because it concluded that, in the absence of independent national oversight and uniform drug and safety standards, the horseracing industry was failing to adequately protect its participants,” the filing stated.

“But, recognizing that rulemaking in a new area should proceed carefully and with proper deliberation, Congress provided that no regulations governing the conduct of horseracing can take effect before July 1, 2022. Regulations the FTC enacts under HISA may (or may not) impact Plaintiffs in the future. But there is not even a proposed regulation for Plaintiffs to complain about today.”

The filing continued: “Plaintiffs thus fail the most basic requirement for invoking this Court's jurisdiction: they cannot establish that they have been harmed in any concrete way by the law they protest. Nor can Plaintiffs establish that their challenges to the statute are ripe for judicial review.

“Adjudicating the merits of Plaintiffs' legal claims now would require the Court to evaluate HISA's framework in the abstract, unaided by any concrete facts or history of agency action. There is no justification for the Court treading this path under any circumstances, and it is doubly improper when Plaintiffs are asking this Court to resolve constitutional claims.”

The federal attorneys also argued that the HBPA's suit fails to support its central claim that HISA unlawfully delegates legislative power to the FTC and the private Authority.

“HISA is far more detailed than the statutory schemes that the Supreme Court has sustained against delegation challenges over the past 80 years,” the filing stated. “And both the Supreme

Court and courts of appeals around the country have repeatedly confirmed that private entities can properly provide extensive assistance to federal agencies, so long as those agencies retain

final decision-making authority and control, as the FTC does here.”

The feds asked the judge to toss out the lawsuit, either on the grounds of the alleged lack of subject-matter jurisdiction or, in the alternative, for the HBPA's supposed failure to state a claim.

“At best, Plaintiffs' complaint could be read to suggest that the Plaintiffs might be subject to some rules they dislike in the future…The Plaintiffs' challenge at this point therefore amounts to nothing more than a request for an advisory opinion on the constitutionality of HISA. This Court is not empowered to provide that, “The Plaintiffs may be able to show a concrete injury from HISA on some future occasion when a specific rule affects their interests,” the filing summed up. “Until then, however, the Court lacks jurisdiction to entertain their claims.”

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