Tag: National Horsemen’s Benevolent and Protective Association

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.

The post McConnell, Barr, Tonko File Brief Asking Court To Dismiss HBPA Lawsuit Against Horseracing Integrity And Safety Act appeared first on Horse Racing News | Paulick Report.

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Motion To Dismiss: Feds Say HBPA ‘Jumped The Gun’ With HISA Challenge

Federal attorneys have filed a motion to dismiss the lawsuit filed by the National Horsemen's Benevolent and Protective Association in an attempt to put the brakes on the Horseracing Integrity and Safety Act (HISA), reports the Thoroughbred Daily News, arguing that the HBPA's “complaint questions the validity of a law that currently subjects them to no obligation or penalty.”

The NHBPA and 12 of its state chapters filed suit in March in the U.S. District Court for the Northern District of Texas, seeking to have HISA and a number of its elements declared unconstitutional. The crux of the suit is that plaintiffs believe HISA delegates legislative authority to a private organization and private individuals in violation of the U.S. Constitution

In the Apr. 30 motion to dismiss, federal attorneys argue: “Plaintiffs jumped the gun bringing this constitutional challenge.”

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.”

Read more at the Thoroughbred Daily News.

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Horseracing Integrity And Safety Act A ‘Poll-arizing’ Issue

People apparently have strong feelings about the poll published over the last week in the Paulick Report asking readers whether they support or oppose the lawsuit filed by the National Horsemen's Benevolent and Protective Association and state affiliates to stop the Horseracing Integrity and Safety Act from being enacted.

We've done polls before on this legislation, asking whether readers were in favor of the Act while it was working its way through Congress and then, following its passage in December 2020, whether the creation of a national office (the Horseracing Integrity and Safety Authority) for medication and safety regulations will have a positive or negative impact on racing.

All those polls expressed strong support for the legislation.

That's why it was a bit surprising to see what appeared to be overwhelming support (about 60%) from our readers for the HBPA's lawsuit asking a federal court to declare the Horseracing Integrity and Safety Act unconstitutional.

A reader pointed out they were able to vote more than one time and suggested that maybe someone supporting the HBPA was “stuffing the ballot box.”

Turns out this person was right.

The software we use to poll readers does collect the IP address for all voters but does not identify them in any other way. It also gives us the option to block any one IP address from voting more than one time. Unfortunately, that box was not checked when this poll was published.

I was able to download and export a file of all votes onto an Excel spreadsheet and sort by IP address. Lo and behold, there were multiple cases of what I would call “extreme voting.” In one case, an IP address was responsible for voting more than 1,000 times. Another voted 500 times. The timestamp on the votes showed some people spent a lot of their daylight hours trying to influence the outcome of this poll.

I went through the document and then back to the voting software and eliminated any multiple votes from the same IP address. In the vast majority of cases, those casting multiple votes were on the side of the HBPA. When all multiple votes were eliminated (no matter which side of the issue they supported), opposition to the HBPA lawsuit came in at 66%, with only 34% supporting the HBPA challenge. This is from a total of 2,230 votes (nearly 1,800 votes from the original 4,000-plus were discovered to be duplicates).

This poll is no longer accepting votes

Do you support or oppose the lawsuit filed by the National HBPA and some of its affiliates to stop the Horseracing Integrity and Safety Act from going into effect?
Vote

The funny thing about this attempt to tilt a non-scientific public opinion poll is that it will have absolutely zero bearing on the legal challenge launched by the HBPA. We asked our readers how they felt because many of them are HBPA members or affiliated with other horsemen's organizations (Thoroughbred Horsemen's Associations or Thoroughbred Owners of California).

So why do it? Why sit at a keyboard for hours and vote hundreds of time on a meaningless poll on some horse racing website that has no influence on a federal court in west Texas, where the HBPA lawsuit was filed?

Maybe some people just can't help but cheat.

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NTRA: ‘Contrary To HBPA’s Hyperbole, HISA Is Neither Unprecedented Nor Unconstitutional’

Following Monday's announcement that the National Horsemen's Benevolent and Protective Association (NHBPA) is filing a lawsuit against the Horseracing Integrity and Safety Act (HISA), the National Thoroughbred Racing Association (NTRA) issued the following response:

Contrary to HBPA's hyperbole, HISA is neither unprecedented nor unconstitutional. HISA emulates the long-established FINRA/SEC model, with even greater protections for all stakeholders. It is disappointing that the HBPA—an entity whose mission is supposedly the welfare of horses and horsemen—would seek to undo much needed reforms to protect the industry's participants.

“HISA, a well-crafted and comprehensive piece of legislation, creates the national framework that addresses our industry's critical need for consistent, forceful anti-doping control and equine safety standards,” said Alex Waldrop, President and CEO of the NTRA. “The NTRA Board of Directors, which consists of representatives from tens of thousands of breeders, owners and trainers from more than 40 states, as well as thousands of horseplayers and virtually every major racetrack in the United States, voted to support HISA. We plan to work tirelessly on behalf of our members and a broad array of interested parties and stakeholders to support HISA's successful launch in July 2022.”

In 2020, the U.S. Congress overwhelmingly passed, and the President signed into law, the Horseracing Integrity and Safety Act (HISA). Through this landmark legislation, HISA recognizes and empowers the Horseracing Integrity and Safety Authority (Authority) to protect the safety and welfare of Thoroughbred horseracing's most important participants—its horses—by delivering commonsense medication reforms and track safety standards.

The NHBPA, along with several of its state affiliates, seeks to upend this historic and bipartisan effort to protect Thoroughbred horses and ensure the integrity of horseracing. The HBPA has recently filed a baseless lawsuit in federal court in Texas, seeking to declare HISA unconstitutional on its face. Setting aside its fatal threshold deficiencies—including the lack of any concrete or imminent harm—the HBPA's lawsuit is meritless. HISA is constitutionally and legally sound. On behalf of a broad spectrum of organizations underlying the sport of Thoroughbred horseracing, we offer the following responses to the various claims by HBPA.

1. HBPA Claim: HISA violates the constitutional “non-delegation doctrine.”

Reality: HISA does not violate the non-delegation doctrine because the United States Supreme Court has long recognized that Congress may rely on private entities so long as the government retains ultimate decision-making authority as to rules and enforcement. HISA recognizes and empowers the Authority to propose and enforce uniform national anti-doping and equine safety standards, but only upon review, approval and adoption by the Federal Trade Commission (FTC). Though this is a first for the Thoroughbred horseracing industry, HISA's structure is not new. HISA follows the FINRA/SEC model of regulation in the securities industry, and, like that model, is constitutional because any action the Authority undertakes is subject to the FTC's approval and oversight.

2. HBPA Claim: The HISA runs afoul of the Appointments Clause.

Reality: The Authority is a private entity, independently established under state law, and recognized by HISA. As such, it is simply not subject to constitutional restraints on appointments (or removal) of its Board members. Indeed, any such claim is at war with HBPA's non-delegation theory premised on the fact that the Authority is a private entity. On the one hand, the HBPA claims that the Authority cannot take action because it is private entity, but then argues, on the other hand, that the Authority cannot appoint its own Board members because it is effectively a public entity. These two HBPA arguments are in conflict, but have one important thing in common: they are both wrong.

3. HBPA Claim: HISA violates due process protections.

Reality: The HBPA's due process theory also falls flat. Though the HBPA complains of equine industry participants regulating their competitors, a strong bipartisan majority of the House and the Senate made clear in HISA that a majority of the Authority's Board members must be from outside the equine industry. To be sure, a minority of the Authority's Board members will have industry experience and engagement. But it is difficult to understand how that statutory recognition of the value of informed voices constitutes a deprivation of due process. What's more, with respect to the minority industry Board members, HISA expressly provides for equal representation among each of the six equine constituencies (trainers, owners and breeders, tracks, veterinarians, state racing commissions, and jockeys). Furthermore, the committee tasked with nominating eligible candidates for Board and standing-committee positions is made up of entirely non-industry members. HISA further imposes broad conflicts-of-interest requirements to ensure that all of its Board members (industry and non-industry alike) as well as non-industry standing committee members (not to mention their employees and family members) are required to remain free of all equine economic conflicts of interest.

Beyond these robust safeguards, established precedent confirms what common sense indicates: even when a private entity is engaged in the regulatory process, agency authority and surveillance protect against promotion of self-interest. Under HISA, for example, the FTC has the authority to decline the Authority's proposed rules and overrule any sanctions—ensuring that neither the Authority nor the individuals making up its Board can use their position for their own advantage in violation of constitutional restraints.

HISA has broad support from the Thoroughbred industry, including: organizations such as the Breeders' Cup, National Thoroughbred Racing Association, The Jockey Club, The Jockeys' Guild, American Association of Equine Practitioners and the Thoroughbred Owners and Breeders' Association; the nation's leading racetracks, including Churchill Downs, Del Mar Thoroughbred Club, Gulfstream Park, Keeneland, The Maryland Jockey Club, Monmouth Park, The New York Racing Association and Santa Anita; leading horsemen's organizations such as the Thoroughbred Horsemen's Association and the Thoroughbred Owners of California; prominent Thoroughbred owners Barbara Banke, Anthony Beck, Arthur and Staci Hancock, Fred Hertrich, Barry Irwin, Stuart S. Janney III, Rosendo Parra and Vinnie Viola; leading Thoroughbred trainers Christophe Clement, Neil Drysdale, Janet Elliot, Claude “Shug” McGaughey, Bill Mott, Todd Pletcher and Nick Zito; grassroots organization Water Hay Oats Alliance, with more than 2,000 individual members; international organizations the International Federation of Horseracing Authorities and The Jockey Club of Canada; and prominent animal welfare organizations American Society for the Prevention of Cruelty to Animals, Animal Wellness Action and the Humane Society of the United States.

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