Op/Ed: Robert M. Beck, Jr.

During one of the most politically polarizing times in our country's history, Congress passed the Horseracing Integrity and Safety Act of 2020 (HISA) with bipartisan support. What did this rare display of unity say about the health of the Thoroughbred racing industry? To say it kindly: the industry needed help. HISA handed over the reins for regulating Thoroughbred safety and anti-doping and medication control matters to a private, self-regulatory organization named the Horseracing Integrity and Safety Authority (Authority). Before HISA, Thoroughbred racing in the United States was regulated by a patchwork of individual state racing commissions with different, and often conflicting, rules. HISA represents a significant change for an industry used to parochial and inconsistent governance–and even more disorderly enforcement. Perhaps more important, HISA is the solution to stop horse racing from going the way of the circus and dog racing, as many commentators and animal rights activists have warned.

Sadly, some in the industry have chafed at Congress' mandate that Thoroughbred racing must be safe, clean, and fair. Since the passage of HISA, the Authority has been attacked on all sides through meritless lawsuits that willfully ignore more than 80 years of binding legal precedent.  Nothing about HISA or the Authority's structure is unique, let alone legally questionable. HISA is modeled after a law called the Maloney Act of 1938, which designated what would later become the Financial Industry Regulatory Authority (FINRA) to oversee financial regulation under the oversight of the Securities and Exchange Commission. Like FINRA, the Authority is self-funded, independent, and overseen by a federal agency. In other words, the Maloney Act and HISA are constitutional for the same reasons:  Congress is well within its power to delegate its regulatory authority to private entities so long as a government agency retains ultimate decision-making authority as to rules and enforcement; Private organizations such as the Authority and FINRA are not subject to constitutional restraints on appointments and removal of board members; and Private self-funding of such organizations does not unconstitutionally compel states to enforce federal law.

For those keeping score, the Authority is winning the battles against its detractors. Two Federal District Courts–one in Kentucky and another in Texas–have soundly rejected the constitutional challenges lodged against HISA and the Authority, and the reviewing appellate courts are expected to affirm these decisions. No court has found HISA unconstitutional. Having lost their challenges to the Authority's constitutionality, the Authority's opponents have resorted to nitpicking the Authority's implementation of its rules. Thus far, these attempts have also failed. In one case, filed in Louisiana Federal District Court, the plaintiffs argued that the Authority failed to satisfy certain technical requirements of the Administrative Procedures Act. Significantly, the Louisiana Federal District Court found zero constitutional violations, but it did initially agree with the plaintiffs that the Authority's definition of “covered horse” and its search and seizure rule expanded beyond the scope the statute ever so slightly. Practically speaking, this portion of the ruling has no impact, because the Authority has already revised one of the rules and the other rule is revised in the ADMC rules. The District Court also questioned the Authority's rule on funding and the length of the notice and comment period, though it recognized that any of the claimed deficiencies could be easily remedied by the Authority even if the Authority is ultimately unsuccessful on the merits. It was perhaps not surprising then that the Authority recently sought and received an emergency stay of enforcement of a Louisiana Federal District Court's order halting implementation of the Authority's rules in Louisiana and West Virginia. This stay makes clear that the Authority's safety rules will continue to be enforced nation-wide.

Unfortunately, during the interim, the Authority's enforcement of its rules in Louisiana and West Virginia was delayed. Racing in both states suffered. For example, one jockey in Louisiana whipped a horse 17 times in one race, 11 times more than the Authority's strike limit. Under the Authority's rules, such behavior is prohibited and would have been swiftly and uniformly punished. But horses are not the only ones suffering as a result of these meritless lawsuits. A fourth federal lawsuit challenging the Authority and HISA was filed in Texas at the end of July. It recycles many of the failed legal claims. Like the cases that came before it (and those that will come after it), the new lawsuit merely serves as a distraction and a waste of industry resources. Ironically, under HISA, horsemen and racetracks will be the ones who bear the brunt of these additional legal costs. It is clear that litigation against the Authority will continue to burden the industry and threaten the safety and integrity of our equine and human athletes. The Authority is doing this good work despite the distractions of the ongoing litigation, and it continues to win the courtroom battles. Sadly, the Authority's legal costs to defend these lawsuits will only increase the costs to all racing participants, horsemen included.

Beck is an equine lawyer and member of Stites & Harbison, PLLC in Lexington, Kentucky. He previously served 7 1/2 years as the Chairman of the Kentucky Horse Racing Commission.

 

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Op/Ed: Corniche Connections Should Consider Dennis Diaz Wisdom

In 1985, owner Dennis Diaz had a decision to make after his runner, Spend a Buck, won the GI Kentucky Derby.

Under ordinary circumstances it would be on to the GI Preakness S. two weeks later.

But, as Lee Corso would say: “Not so fast.”

In this particular year, before the Triple Crown prep season had begun, Garden State Park owner Robert Brennan offered a $2-million bonus to any horse who won the track's two preps plus the Kentucky Derby and GIII Jersey Derby.

Diaz and trainer Cam Gambolati sent Spend a Buck to the New Jersey racetrack, where he won the Apr. 6 Cherry Hill Mile S. and Apr. 20 Garden State S. prior to his run in the Kentucky Derby.

So, after Spend a Buck, under jockey Angel Cordero, Jr., beat Stephan's Odyssey by 5 3/4 lengths in a sharp 2:00 1/5, Diaz had a decision to make.

It didn't take him long to make it.

Though Pimlico, home of the Preakness, had upped its purse from $250,000 to $350,000-added, Diaz opted for Brennan's offer. The Preakness was won by Tank's Prospect, who earned $423,200 for his owner, Gene Klein.

Spend a Buck won the May 27 Jersey Derby with Laffit Pincay, Jr. aboard, Cordero having a previous engagement. With the purse and bonus, Diaz pocketed $2.6 million, at the time the largest purse in the world.

(Who did Spend a Buck defeat in the Jersey Derby by a neck but Creme Fraiche, who would go on to take the GI Belmont S.)

Because of the bonus Brennan had offered, and the fact Diaz had spurned a run at the Triple Crown to chase the money instead, Triple Crown Productions was formed and the three tracks (Churchill Downs, Pimilco and the New York Racing Association's Belmont Park) began offering a $5-million bonus to any horse that swept the series.

Now, with the purses of the Triple Crown races larger and the long-dropped bonus sponsorship (first by Chrysler, later by VISA), the bonus, which was never paid, has been dropped.

Breeders' Cup Juvenile winner Corniche | Breeders' Cup/Eclipse Sportswire

What does all of this have to do with today?

Well, today Peter Fluor and K.C. Weiner have a decision to make. The men, who race as Speedway Stables, own Corniche (Quality Road), winner over the weekend of the GI Breeders' Cup Juvenile.

With his decisive victory, and a perfect three-for-three season, Corniche will be named champion juvenile colt. And with that, the expectation of being the winter-book favorite for the 2022 Kentucky Derby.

Where is Corso when you need him, because again, “not so fast.”

Corniche is trained by Bob Baffert, who trained this year's Derby winner Medina Spirit (Protonico). However, after Medina Spirit tested positive for the presence of betamethasone, Churchill Downs Inc. suspended Baffert from saddling horses at its tracks for two years.

Yes, a different set of circumstances altogether than what faced Diaz, who owned a modestly bred horse bought inexpensively and trained by someone few had previously heard of.

Corniche was an expensive purchase ($1.5-million OBS April sale topper) with a nice pedigree, bred and racing in an age where there are a multitude of farms and partnerships desperately competing to make future stallions.

If they are hell-bent on taking a run down the Triple Crown trail, Fluor and Weiner have two options. They can transfer their colt to a new trainer or they can pursue litigation against Churchill to allow Baffert-trained runners to earn points in prep races and compete in the Derby.

Or, they could take a page from Diaz and instead of being hell-bent, they could say to hell with tradition, the Derby, and Churchill.

There are, after all, many other racetracks and many other races with big purses. And, surely, some clever racetrack promotion team could put together a bonus as cleverly as Brennan did.

Another thing for Fluor and Weiner to consider: Corniche's sire, Quality Road, did not win the Derby. Neither did Tapit, Into Mischief, Ghostzapper, Curlin, Medaglia d'Oro, Uncle Mo

Want to go back a bit further in history? Though Northern Dancer won the Derby and established a dominant sire line, Mr. Prospector, who also began a superior sire line, did not.

Yes, the Derby will always be the Derby. To this Kentucky-bred, there is no more wonderful race than the Derby. Never will be.

But winning the Derby should not be the ultimate goal for Fluor and Weiner. If they believe in their horse, and in their trainer, there are many other races in which to run.

And, make no mistake about it, breeding farms will still want to stand their horse and breeders will still want to send mares to him.

Another thing for the residents of Houston to think about. Spend a Buck was voted the 1985 Horse of the Year and champion 3-year-old colt.

Tradition is great. It provides us a way of linking the past to the present and perhaps one day, to the future.

But for Peter Fluor and K.C. Weiner, there is also the wisdom of Dennis Diaz to consider.

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Op/Ed: HISA Necessary for Our Future

At the end of 2020, I was happy to hear that an important piece of legislation geared toward keeping our horses safe, the Horseracing Integrity and Safety Act (HISA), was signed into law. I chose to support HISA because it will establish the same medication rules and penalties at every track in every jurisdiction in the United States, which makes for fair and equal competition, promotes equine welfare and punishes those who cross the line. This week, I read the news that the governing authority established by HISA announced its board of directors, and even though I don't recognize every name on the list, the fact that this law is becoming a reality brings me hope for the future of the sport I love.

As someone who has been around racehorses since I could walk and has trained them for more than 40 years, horse racing is my life. I take pride in my training operation, which has competed at the highest levels while prioritizing equine welfare and conducting ourselves with integrity. Unfortunately, not all horsemen can say the same. Some use nefarious medications to mask injuries and make their horses perform better while others only run their horses in states where they can take advantage of lax rules. On numerous occasions, I have speculated that my horses were not competing on a level playing field simply because my team and I follow the rules that others bend and ignore.

As I said before, I love this sport and the horses that I get to work with every day, and ensuring they can have a sustainable future is important to me and my family. I believe that HISA is necessary for that future.

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Op/Ed: It’s Time to Challenge Monomoy Girl

Don't get me wrong. I respect Monomoy Girl (Tapizar). She's right up there among the best fillies and mares to compete in any of our lifetimes. But there was something routine about her victory in Sunday's GIII Bayakoa S. at Oaklawn Park.

It was the 16th chapter in what has essentially been the same story from the start. In 15 of her 16 races, she has crossed the wire first, always against fillies and mares while winning in a manner better described as professional rather than breathtaking. There were some decent fillies, including Grade II winner Finite (Munnings) in there, but there was never any doubt who would win the Bayakoa. Monomoy Girl is just a lot better than those horses. She's just a lot better than any filly in training.

The Bayakoa was a tuneup for the April 27 Apple Blossom H. Though it's a $1-million, Grade I race, the Apple Blossom will likely be another one-horse race. So far as what will come after that, her new owners haven't said. But where she goes after the Apple Blossom will tell us a lot about their intentions going forward.

Will the kid gloves come off? It's time for that to happen.

Through her 5-year-old year, Monomoy Girl was owned by the partnership of Michael Dubb, Monomoy Stables, Stuart Grant and Bethlehem Stables, and the group did a masterful job of managing her. They won the two races that matter most for a 3-year-old filly, the GI Kentucky Oaks and the GI Breeders' Cup Distaff. Due to a variety of setbacks, she missed her entire 4-year-old year and, then, the owners were understandably cautious when bringing her back last year as a 5-year-old. She didn't return until May, ran just four times and completed her year with another win in the Distaff and another Eclipse Award.

A few days after the Breeders' Cup, she was sold for $9.5 million at the Fasig-Tipton November Sale, and her new owners, Spendthrift Farm, My Racehorse Stable and Madaket Stable, gave the sport a gift when announcing they would run her this year as a 6-year-old. Presumably, she will be retired at the end of this year after the Breeders' Cup and will settle in at Spendthrift, where she will be among the most valuable broodmares on the planet.

That likely means that there are eight months left before she is done and eight months left to define her career.

The safe route would be to stay in her own division and run in races like the Apple Blossom, the GI La Troienne S., the GI Ogden Phipps S., the GI Personal Ensign S. and the GI Spinster S. before attempting to win the Distaff for a third time.

But what would that prove? She would be heavily favored in each race against overmatched rivals and it's unlikely that anyone would beat her.

Even with an unprecedented third win in the Distaff, should Monomoy Girl stick to running against fillies and mares, she will have retired without an all-important race against males. And that would set her apart from the two greatest fillies of her era. Rachel Alexandra (Medaglia d'Oro) defeated males in the GI Preakness S., the GI Haskell Invitational and in the GI Woodward S. Zenyatta (Street Cry {Ire}) won the richest race on the U.S. calendar, beating males in the GI Breeders' Cup Classic.

Should Monomoy Girl stay in her division and run the table, she'd earn about $2 million on the racetrack. Considering how much they paid for her, how much she is worth as a broodmare and that Spendthrift has very deep pockets, it's doubtful that $2 million really matters to them one way or the other. And if they were in any hurry to retire her, at age six, they had every reason to do so rather than bringing her back to race this year.

The hope is that Spendthrift bought her and brought her back to the races this year, at least in part, so that they could enjoy what could be a terrific ride from an outstanding mare. Winning the La Troienne at 1-5 for the second straight year is not going to accomplish that. Or do anything for her legacy.

It would have been nice to see Monomoy Girl do what her rival Midnight Bisou (Midnight Lute) did when she took on males last year in the $20-million Saudi Cup. Or they might have pointed her for the G1 Dubai World Cup. It's too late for that, but not too late to schedule a post-Apple Blossom campaign that includes races against the boys. I'd like to see her run in a bunch of them, maybe the GI Whitney S., the GI Jockey Club Gold Cup and then the Classic. But I won't complain if they pick only the Classic. That's the race she belongs in.

Spendthrift owner B. Wayne Hughes is a smart businessman and he has every right to try to make as much money off of Monomoy Girl as possible. But he also comes across as someone who understands the history of the sport and is a sportsman. He gave the other great mare he campaigned, Beholder (Henny Hughes), a chance against males and she came through with a dominant win in the 2015 GI Pacific Classic. Let's hope he does the same with Monomoy Girl. Win or lose, she deserves the chance to show the sport just how great she really is.

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