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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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Horseracing Integrity And Safety Act Signed Into Law

The Horseracing Integrity and Safety Act is now law.

The legislation passed by the Senate on Dec. 21 that will put anti-doping/medication control and safety programs under the umbrella of one independent, non-governmental Authority, the Horseracing Integrity and Safety Act was part of a 5,500-plus page, $2.3 trillion bipartisan government funding bill that included $900 billion in coronavirus relief extending unemployment benefits and providing up to $600 in cash payments to individuals. President Donald Trump, whose Treasury Department officials helped negotiate the package, had threatened to veto the bill, in part demanding that the $600 individual benefits be increased to $2,000.

On Sunday night, Trump signed the bill into law.

A previously formed nominating committee can now move forward in naming 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.

Passage of the legislation, originally supported by the grassroots Water Hay Oats Alliance and sponsored in the House of Representatives by Democrat Paul Tonko of New York and Repubolcian Andy Barr of Kentucky, was years in the making. It got fast-tracked earlier this year when Republican Senate Majority Leader Mitch McConnell threw his support behind it after Churchill Downs came on board and joined with other major racing organizations. It passed the House in September on a voice vote and was part of the omnibus bill passed overwhelmingly by the Senate Dec. 21.

The omnibus legislation that is now law includes other measures beneficial to the horse industry, including continuation of H-2B visa programs for foreign workers and extension of three-year tax depreciation for purchase of racehorses and COVID relief for small businesses in the horse business.

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‘A Pivotal Moment’: Industry Leaders Applaud Passage Of Horseracing Integrity And Safety Act

The following was issued by the office of Senate Majority Leader Mitch McConnell.

U.S. Senate Majority Leader Mitch McConnell (R-KY) led the Senate Monday night in passing the Horseracing Integrity and Safety Act, which was included in the year-end government funding bill. The legislation now goes to President Trump's desk to become law. Senator McConnell introduced the bipartisan legislation in September, only days after the 146^thKentucky Derby, to recognize a uniform, national standard for Thoroughbred racing.

“Kentucky's cherished horseracing traditions deserve to be protected. I'm proud the Senate agreed to my legislation to preserve our signature racing industry and the 24,000 workers who support it,” said Senator McConnell. “With the leadership of Congressman Andy Barr and the partnership of sport leaders, horse advocates, and fans, we're one step closer to promoting fairness and safety across Thoroughbred racing. As Majority Leader, I made this Kentucky-focused legislation a top priority in the Senate. I look forward to this major advancement for our beloved sport becoming law.”

The House of Representatives passed the Horseracing Integrity and Safety Act in September led by U.S. Congressmen Andy Barr (KY-06) and Paul Tonko (NY-20). U.S. Senators Kirsten Gillibrand (D-NY) and Dianne Feinstein (D-CA) — Senators representing states with prominent racetracks — were original cosponsors in the Senate.

“With today's passage of HISA in Congress we are in the final stretch of achieving the most transformational and consequential reform of the Thoroughbred horseracing industry since enactment of the Interstate Horseracing Act of 1978,” said Congressman Barr. “For almost a decade, I have worked with industry stakeholders and my Congressional colleagues to build consensus around reforms that will protect equine athletes and strengthen confidence and international competitiveness in the sport. I am proud to champion this historic, bipartisan legislation with Congressman Paul Tonko and Leader McConnell and I look forward to President Trump signing it into law.”

In August, Senator McConnell and Congressman Barr joined horseracing leaders in Lexington, the Horse Capital of the World, to announce an agreement years in the making to create national standards for the sport. The Horseracing Integrity and Safety Authority will be an independent regulatory authority, similar to other professional sports, to set medication use and safety protocols.

The bipartisan legislation has earned broad support from trainers, breeders, jockeys, and other leaders of the Thoroughbred racing industry:

“Senator McConnell's leadership has been critical in bringing the Thoroughbred industry together and prioritizing the passage of the Horseracing Integrity and Safety Act,” said Bill Carstanjen, chief executive officer, Churchill Downs Incorporated. “This is a pivotal moment for the future of horseracing, a sport that will now be governed by world class, uniform standards across the United States.”

“The passage of HISA is a landmark moment for the Thoroughbred racing community's ongoing efforts to ensure our horses are running under the safest and most transparent conditions possible and to protect the integrity of the sport for our athletes, horsemen and fans. The independent Authority established by HISA will bring a level of consistency and accountability that will improve our sport for years to come as they work to develop and implement uniform anti-doping, medication control and operational measures. Keeneland is honored to have been involved in this ground-breaking legislation,” said Keeneland president and CEO Bill Thomason jointly with president-elect Shannon Arvin.

“This marks the single most significant safety and integrity development in the history of Thoroughbred racing. This moment also demonstrates that great progress can be accomplished when the industry works together,” said Drew Fleming, president and CEO of Breeders' Cup. “We recognize that there is more to be done and we look forward to working with our counterparts to build on this momentum and further improve the sport for generations to come.

“Breeders' Cup thanks House and Senate leadership for their support and applauds Senate Majority Leader Mitch McConnell (R-KY) for bringing the industry together to build consensus on meaningful reforms and regulations. Senators Dianne Feinstein (D-CA), Kirsten Gillibrand (D-NY) and Martha McSally (R-AZ), along with Representatives Andy Barr (R-KY) and Paul Tonko (D-NY) were also instrumental in this all-hands-on-deck effort to making racing safer and more transparent. HISA will increase public confidence in one of our country's oldest sports by creating uniform anti-doping and medication control and racing operations programs that will be developed and enforced by an independent Horseracing Integrity and Safety Authority (the Authority). Breeders' Cup is proud to have played a role in this effort.”

“I'd like to thank Senate Majority Leader McConnell for diligently focusing on getting this much-needed bill included in the must-pass Omnibus Appropriations Bill,” said Stuart S. Janney, III, chairman of The Jockey Club. “Leader McConnell has been a powerful force when it comes to promoting and supporting the Thoroughbred industry in Kentucky and throughout the nation. With the passage of this bill, we restore confidence with our fans that the competition is clean, the game is fair and the horse and rider are protected.”

“We thank Senate Majority Leader Mitch McConnell for his pivotal role in the passage of the Horseracing Integrity and Safety Act (HISA) by the U.S. Senate,” said Alex Waldrop, president and CEO of the National Thoroughbred Racing Association (NTRA).“We look forward to President Trump signing the HISA into law and by doing so, commencing the establishment of an independent and well-informed central authority that will ensure the integrity of our sport and the safety of our human and equine athletes nationwide.”

“This is a monumental step forward that will help secure the future of Thoroughbred racing in the United States,” said Dave O'Rourke, president & CEO of the New York Racing Association, Inc. (NYRA). “For the first time, the sport will have a unified set of national safety and integrity standards to replace an outdated system that relied on patchwork regulation. The HISA will achieve the type of reforms long supported and advanced by NYRA, including a national approach to medication control and strongest anti-doping authority the sport has ever seen. This legislation will further modernize horseracing and arrives at a critical juncture in its history. NYRA looks forward to the work that lies ahead.”

“This is the day that the members of the Water Hay Oats Alliance (WHOA) have long been waiting for,” said Staci Hancock, managing member of the Water Hay Oats Alliance. “Since 2012 our grassroots movement has supported the passage of federal legislation to prohibit the use of performance-enhancing drugs in horseracing. The Horseracing Integrity and Safety Act (HISA) brings much needed drug and medication reform, as well as national track safety standards, to our sport. It is with great pride and complete satisfaction that WHOA celebrates the bill's passage. We thank Senate Majority Leader Mitch McConnell and House sponsors, Congressmen Andy Barr and Paul Tonko, for getting it across the finish line.”

Kitty Block, president and CEO of the Humane Society of the United States, and Sara Amundson, president of the Humane Society Legislative Fund jointly stated:

“This is a blue ribbon moment in the history of American horseracing, and this well-crafted measure sets the bar high and is a reminder that goodwill is indispensable in our politics. Working together with stakeholders to get it across the finish line, Senator McConnell and other leaders have helped to put the industry on a strong path to positive reforms. With their success in brokering an agreement with disparate stakeholders, and their dedicated work in the stretch run, Majority Leader McConnell, Sens. Kirsten Gillibrand, Dianne Feinstein and Martha McSally and Reps. Andy Barr and Paul Tonko have risen to the occasion, building a broad base of support for lasting and meaningful change.”

Additional comments from throughout the industry:

The Kentucky Equine Education Project (KEEP) applauds the United State Congress for including the Horseracing Integrity and Safety Act in the FY 2021 omnibus spending bill that was passed by Congress tonight.

KEEP is thankful for Senator Mitch McConnell and Representative Andy Barr's longtime leadership on this issue. Additionally, KEEP is grateful for Representatives James Comer, Brett Guthrie, Hal Rogers, and John Yarmuth's cosponsorship of the House of Representatives' version of the Horseracing Integrity and Safety Act.

Elisabeth Jensen, KEEP's Executive Vice President who oversees the daily operations of the organization, commented, “KEEP has been at the forefront of the industry in calling for uniform safety standards. This legislation is critical for Kentucky's signature industry and we are thankful to the Commonwealth's members of Congress who championed this issue. We look forward to working with our industry partners in the implementation of these new safety standards.”

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Horse Racing Integrity and Safety Act Advances in Congress

The $900 billion COVID-19 relief bill that was expected to pass Monday includes a provision that calls for the passage of the Horseracing Integrity and Safety Act. With the omnibus spending bill having received bipartisan support and with President Donald J. Trump expected to sign it, the legislation that would bring sweeping change to how the sport is regulated and policed appears to have cleared its final hurdle.

Congressional leaders announced Sunday night that they had reached a deal on the stimulus package that included the horse racing act. It was expected to be voted on by the House of Representatives some time Monday and would then go to the Senate, which could also vote on the bill Monday. Once the bill is signed by President Trump it will become a reality.

“It’s a great day,” said Congressman Paul Tonko (D-NY), a longtime proponent of the Horseracing Integrity and Safety Act. “It’s going to save a sport, provide additional jobs and will be so respectful of the equine athletes, the jockeys and others who are involved. It begins and ends there. I am thrilled about it.”

The effort to increase attempts to end doping and to improve safety through legislation has been an on-going process that started at least six years ago and was spearheaded by Tonko (D-NY), whose district includes Saratoga, and Congressman Andy Barr (R-Ky), whose district includes Keeneland. However, the Horseracing Integrity and Safety Act appeared to be stalled until Senate Majority Leader Mitch McConnell (R-Ky) announced his support in a September press conference at Keeneland.

“It’s a great day,” said Arthur Hancock, who, along with his wife Staci, has been fighting for industry reform for nearly 30 years and formed the Water Hays Oats Alliance. “It’s hard to believe. I’m still sort of pinching myself that it is done. Leader McConnell of Kentucky has done a wonderful job and so has Andy Barr and Paul Tonko. Senator McConnell, they threw him the pass and he ran a 75-yard touchdown. I think now the horse business has a future. People will come to, hopefully, trust it again and have confidence in it. We’re going to clean out the drugs and thugs.”

The House passed a stand-alone version of the Act shortly after McConnell voiced his support, but had to vote again because the legislation was now included in a different bill. The language covering the Horse Racing Integrity and Safety Act in the spending bill is virtually identical to the bill passed by the House of Representatives in September.

“The private, independent, self-regulatory, non-profit corporation, to be known as the ‘Horseracing Integrity and Safety Authority’ is recognized for purposes of developing and implementing a horseracing anti-doping and medication control program and a racetrack safety program for covered horses, covered persons, and covered horseraces,” it reads.

“I think this will build great layers of integrity into the process, which is an important thing,” Tonko said. “There are many, many choices for sports fans these days. The sports fans are very discerning and if we are to provide a cleaner image, one that’s safer and more respectful of the equine athlete, the jockeys and all the people involved in the sport, I think it will mean a great shot in the arm for the sport.”

The bill calls for a phase-in period, with the bill going into effect July 1, 2022, at which time the “Horse Racing Integrity and Safety Authority” will be in place and responsible for “developing and implementing a horseracing anti-doping end-medication program and a racetrack safety program for covered horses…”

The “Authority” will be governed by a nine-member Board which must be put in place prior to July 1, 2022. The Federal Trade Commission will have oversight of the Authority and the United States Anti-Doping Agency will be brought in to handle drug testing and enforcement.

Where the funding will come from to pay for USADA and the Horseracing Integrity and Safety Authority remains somewhat unclear. The bill states that initial funding to establish the Authority and underwrite its operations shall be provided through loans obtained by the Authority.

The Horseracing Integrity and Safety Act had picked up widespread support in the industry. The Jockey Club was the most visible and vocal group when it came to supporting reform measures through legislation, but was joined by the Breeders’ Cup, Keeneland, Churchill Downs, the New York Racing Association, Del Mar, The Stronach Group, as well as other influential racing organizations.

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