Diodoro Resurfaces At Lone Star Park

High-profile trainer Robertino Diodoro, who is serving a provisional suspension from the Horseracing Integrity and Welfare Unit (HIWU) after the banned substance levothyroxine was found in his barn at Oaklawn Park, has entered a horse for the April 18 card at Lone Star Park. On opening night, he has entered Master of Disguise (Mastery) in a maiden special weight race with a purse of $33,000.

Diodoro is eligible to race in Texas because the Horseracing Integrity and Safety Authority (HISA) does not have jurisdiction in that state.

Diodoro did not return a phone call from the TDN, but it appears that he will be busy at the Lone Star meet, which concludes on July 14. Diodoro has been allotted 50 stalls, which appears to be the maximum amount allowed by the track's racing department. He has not started a horse since April 3 at Turf Paradise. He was able to run in Arizona after his suspension was announced because the horses had been entered before Diodoro was notified of the violation

Diodoro was provisionally suspended by HIWU on March 29. Though he has been summarily suspended the case must still be reviewed by HIWU's Internal Adjunction Panel. Diodoro also has the option of trying to contest the suspension in court.

Levothyroxine is a thyroid medication. According to the National Library of Medicine the use of thyroid hormones for doping to enhance performance in human sports has long been controversial. There have been claims of abuse of these drugs, but they have not been prohibited by the World Anti-Doping Agency.

The Texas Racing Commission interpreted its state racing rules and concluded that only the racing commission can legally oversee racing in the state and therefore would not allow HISA to come into Texas. Because they are not under HISA's jurisdiction, Lone Star Park and Sam Houston cannot send their simulcast signal out of state.

Diodoro was the leading trainer in 2023 at Oaklawn Park and is currently still in second place in this year's Oaklawn standings. Training since 1995, Diodoro has 3,184 career wins and a winning rate of 21 percent.

A similar scenario is playing out in Louisiana, where trainer Jonathan Wong has begun racing. Wong received a two-year suspension from HIWU after he had a horse test positive for Metformin, a drug that is commonly used by humans to combat type 2 diabetes. Like Texas, Louisiana racing is not under HISA's control. Wong has started eight horses in Louisiana with no winners. He has four horses entered at Evangeline Downs next week and another Saturday night.

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Practical Joke Colt Tops Texas Yearling Sale

GRAND PRAIRIE, TX – A colt by Practical Joke brought $110,000 to top Monday's single-session Texas Thoroughbred Association (TTA) Summer Yearling Sale at Lone Star Park.

By the numbers, a total of 175 yearlings sold for $3,240,000. The figures represented a decrease from 2022 when 161 sold for a record $3,416,000 in gross receipts. This term, the average was $18,542, while the median was $11,000 and 77 horses reported not sold.

Foster Bridewell, Director of Horse Sales for the TTA, said of the auction, “Three of our top five offerings were Texas-breds, so that was good to see,” he said. “This was one of our largest catalogs in the history of this sale and we had buyers from several key quadrants–Kentucky, Ocala, California and across the Lone Star State.”

A Practical Topper For Al Pike

Offered as hip 122, the dark bay was purchased by Al Pike, acting as agent. The Apr. 30 foal is out of SW Jan's Perfect Star (Imperialism), dam of UAE Jebel Ali Sprint hero Road Bloc (Street Sense). The native Texan from Palestine, and his wife Salley, relocated this past summer to Highlander Training Center, outside of Dallas. A regular on the pinhooking scene, Pike frequents a bevy of juvenile sales, including OBS March, Fasig-Tipton Midlantic and the Texas 2-Year-Old In-Training Sale.

Practical Joke colt (hip 122) | Olivia Friesen/TTA Sale

Pike said he saw this yearling as an opportunity.

“This one is for me and partners,” said Pike. “I thought he was a stunning Practical Joke, beautiful horse, and I think he's going to grow to be really special. It's just the Practical Joke that sold it and he had some pedigree too. I just thought he was a beautiful colt. This will be one to pinhook for the spring and we'll probably look to go to OBS March.”

Bred by Michael and Linda Mazoch of Texas, the colt was consigned by Scott Mallory, agent.

“He came from Buena Madera and they always do an excellent job in preparing the horses for the sale,” Mallory said. “And it makes it a whole lot easier when you get to the sale because they are well presented. With the recent success of Practical Joke, we kind of thought he'd be fairly popular with the sale. He vetted good, handled himself well up there. And with Texas coming up with the $40,000 maiden special weights, we knew that would add an extra bid or two. I didn't quite think he'd bring $110,000, but I'm happy about it. We thought he'd sell well–I thought he'd sell for $70,000 or $80,000, but $110,000 is excellent.”

Vekoma Colt Takes Home Silver

Late in the session, hip 260, a chestnut colt by Vekoma, brought $90,000 from pinhooker David Scanlon. Out of Winning Saga (Tale of the Cat), the May 12 foal was raised and prepped at Elm Tree Farm in Kentucky and consigned by agent Scott Mallory, who also consigned the topper.

“This colt just showed well the whole time, he had a great disposition, he just looks like he is going to turn into a really beautiful 2-year-old and he was bred by Dr. Fred Willis from Louisiana,” said Mallory.

Competitive Edge Colt Reminds Asmussen of Ryvit

The third highest-priced yearling of the session was taken home by Steve Asmussen's KDE Equine for $85,000. Hip 24, consigned by Highlander Training, was bred by Valor Farm in Pilot Point, Texas.

Ryvit schooling at Saratoga with Erik Asmussen up | Sarah Andrew

The Feb. 16 foal is the first foal out of unraced Better Than Mo (Uncle Mo), who counts MSW More Than Most (Indygo Mountain), MSW Worldventurer (Wimbledon) and GIII Miss Preakness S. scorer Red Ghost (Ghostzapper) as half-siblings. His third dam MGISP Alysbelle (Alydar) is a full-sister to Horse of the Year Alysheba.

Asmussen indicated Monday's purchase was prompted by another Texas sale graduate, GIII Chick Lang S. victor Ryvit (Competitive Edge).

“A couple of years ago, I got Ryvit out of this sale,” explained the Hall of Famer. “I think that there are blue collar horses and they have to earn their keep. And it had everything to do that he reminded me of Ryvit. Just a very sturdy and athletic-looking horse and, hopefully, we can create a similar circumstance.”

On behalf of his client Whispering Oaks, Asmussen also purchased hip 110, a Louisiana-bred colt by Spun to Run out of SP Hilarious Brown (Big Brown) for $80,000, in addition to a dark bay filly by Competitive Edge out of Conquest Bebop (Scat Daddy) (hip 51), who also brought $80,000.

Complete sales results can be found here.

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Letters to the Editor: Texas Horse Racing Needs HISA

The horse…inquisitive, sensitive, totally aware, much smarter than you think, fearful, and a creature of habit. When my daughter returns to our family barn after training in Florida for six months, her retired horses greet her with a whinny. An old friend has returned.

The horse is a fabric of historical Texas. The horse represents how we all arrived here, and how we survived in the earliest days. Some horses are bred to run–that's their job. All animals need a job and thrive when working. The thoroughbred's instinct is to run as fast and as far as it can. As long as there are horses, there will be horse races, and men and women will admire the sheer determination, stamina, strength, and speed of the majestic horse.

The tragedy at Churchill Downs this past May, in which twelve horses broke down on the racetrack, fractured their lower legs and needed to be euthanized, should never be repeated. The cause of this rash of sudden breakdowns is uncertain: the current American thoroughbred may be bred too strong up top across the chest with lower legs that are relatively too thin and fragile, or changes in the surface of the track due to humidity and weather variations may increase the risk of a ligamentous injuries which can then predispose to falls and catastrophic fractures. Most horses can survive the surgery, but few can survive the confinement and partial weightbearing needed to allow these fractures to heal.

The Jockey Club, in recognizing this problem, sought relief from Congress and in one of the few truly bipartisan pieces of legislation in the past 10 years, the Horseracing Integrity and Safety Act (HISA) was passed. This lifesaving legislation allows the government to designate a corporate entity to unite the horse industry, to find ways in which horse tragedies can be eliminated, and drug abuse can be regulated at the Federal level.

The model is not a new one. A Federally sponsored corporate entity serves to regulate the Securities and Exchange Commission. The needs are similar. Regulation among multiple states with multiple interests are consolidated under a single governing body with superior resources and a single purpose-driven goal.

In response to the HISA act, most states have supported and endorsed this model, but a few outliers, including the State of Texas represented by the Texas Racing Commission, have sought to preserve the status quo.

The Commission's stated rationale is that only the Texas Racing Commission may regulate parimutuel racing and simulcast wagering in Texas. Although National regulation affects all aspects of our life living in Texas, the Texas Racing Commission, due to this perceived legal technicality, has been unable to find a compromise solution. As a result, the Texas racing industry suffers, the Texas patrons who enjoy horseracing suffer, and our thoroughbred gladiators suffer the most.

A second consequence of this stalemate is that racetracks in Texas can no longer simulcast Texas races to other communities and states and receive wagers allotted for their racing program.  Without the ability to simulcast, the betting handle at Sam Houston Racetrack during the winter meet fell 90% and the handle at the current Lone Star spring and summer racing meet is not significantly better. Tracks survive by taking approximately 15% of the betting handle to support their operations and purses. The current situation is unsustainable.

Having served on the Texas Racing Commission for 10 years, including four years as Chairman, I can attest that the Commission staff, stewards, and the working regulators are superb and unmatched in their quality and dedication. The political appointees of the Commission, however, have lost sight of their designated purpose.

In this one rare instance, Congress has actually provided us–and our horses–a solution. Ultimately, HISA has the resources, the regulatory power, and sophisticated lab testing that can root out illegal drug use, research track surfaces, and analyze breeding patterns. HISA has the potential to improve the sport and create a safe horseracing animal that can thrive in a newer environment.

The Texas Racing Commission needs to recognize its responsibilities and protect our animals in an ever-changing world. The consequences of the Texas Racing Commissioners' opposition to these efforts simultaneously leaves our horses at risk and our tracks on the path to ruin.

Texas deserves better.

 

Robert Schmidt, MD is a Fort Worth based orthopedic surgeon specializing in joint replacement surgery of the hip and knee. He and his wife had bred and raced thoroughbreds under the colors of Oak Meadow Farm. He was appointed by Govenor Perry to the Texas Racing Commission and served for 10 years, including 4 years as chairman. He currently serves as Mayor of Annetta North, Texas.

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Legal Expert: If Fifth Circuit Finds HISA Constitutional, Texas “Absolutely” Can Implement Law

Like rival boxers primped and posturing, proponents of the Horseracing Integrity and Safety Act (HISA) and the Texas Racing Commission (TXRC) have taken to their respective corners during the unfolding legal fight over the law and have remained un-budged.

At stake is the lucrative business of nationally beaming Texas's simulcast wagering signal.

The TXRC initially took the stance that it is legally prohibited from permitting Texan tracks to export their signals. Then at the start of February, the Fifth Circuit Court of Appeals sent the congressionally amended version of HISA down to the district courts for further review.

The Texas commission interpreted this action as meaning that HISA is “facially unconstitutional and therefore has no effect on the State of Texas,” seemingly opening the door to Texas tracks once again engaging in interstate simulcasting.

As of writing, no Texas-based track has adopted that policy, and the simulcasting signal remains flatlined. Furthermore, just this May, the federal court judge out of the Northern District of Texas, Lubbock Division, found this version of HISA as constitutional. The case has now been appealed back up to the Fifth Circuit Court of Appeals.

In the meantime, though purses in the state remain fairly stable, the tracks are taking a huge financial knock, and horsemen there are raising concerns about other ancillary impacts on their businesses. Some of the horsemen are now asking: Can HISA be implemented in the state in order to facilitate the interstate simulcasting signal?

The TXRC has taken the stance that state law bars HISA from being implemented in the state unless it is replaced or altered to become a cooperative agreement grant program–an alternative financial and regulatory model for the federal government to cooperate with individual states.

Amy Cook | Courtesy of Amy Cook

Even then, “our statute doesn't even allow us to take grants,” TXRC executive director, Amy Cook, told the TDN last week.

“We've actually made a request to have our statute conform, so, if HISA did become a cooperative agreement grant program, and the [Federal Trade Commission] FTC became a grantor, we could actually take that money and work with HISA. That's the only pathway I see,” Cook added.

In a follow-up email, Phil Fountain, the TXRC's chief of staff, pointed to a previously released commission “fact-sheet” broadly outlining its legal argument. The fact-sheet cites the Texas Racing Act, which directs the commission to “regulate and supervise each racing meeting in this state” that involves wagering.

“There is no provision for the Texas Racing Commission to cede this authority to another party. This means there is no preemption of Texas law under HISA's opt-in structure because HISA does not regulate pari-mutuel horseracing activities,” wrote Fountain.

A legal analysis put together for HISA by the law firm Akin Gump takes the opposite stance. It finds that HISA indeed preempts the Texas law that the commission says confers it exclusive authority to regulate all matters relating to horseracing.

Furthermore, under HISA and state law, the TXRC can implement HISA and still continue to regulate matters outside the reach of HISA's jurisdictions, the Akin Gump analysis finds.

“There is no legal impediment to reversal of the Texas Racing Commission's self-destructive policy decision of restricting interstate wagering on horse racing. Under State and federal law, the Commission may continue to regulate horse racing in Texas to the extent not preempted by HISA rules,” the analysis for HISA finds.

Which side stands on the sturdiest legal legs?

For an independent take on the dispute, the TDN spoke with Daniel Rodriguez, former dean of the Northwestern University Pritzker School of Law and former Minerva House Drysdale Regents Chair in Law at the University of Texas, Austin.

Prior to being asked to sort through the legal bones of the matter, Rodriguez said that he was unaware both of the HISA legislation passed into law at the end of 2020 and of the legal conflict that has arisen in Texas.

His answers hinge on the looming decision in the Fifth Circuit Court of Appeals, which is set to rule on the constitutionality of the congressionally amended version of HISA. That ruling, however, could still take a number of months.

“What the Fifth Circuit is being asked to do is rule on a matter of federal constitutional law, just as they were asked to do on the ruling back in 2022, when the Fifth Circuit struck down the statute as violating what they call the private non-delegation doctrine,” he said.

If the court rules in tandem with the Sixth Circuit Court of Appeals–which recently found the revised HISA statute constitutional–there is “absolutely nothing” in Texas statute that bars HISA from being implemented in the state, he said. “That we can all agree on–even the lawyers for the Texas racing commission.”

When asked about the Texas commission's stance–that state law bars HISA's implementation in Texas, irrespective of any court ruling in its constitutionality–Rodriguez called it “foolishness” as well as “head-scratching.”

In other words, what the commission is saying in that scenario is that “I can't comply with the law,” he said, before describing the stance as a policy posture rather than a solid legal argument.

“I lived in Texas for five years so I get to say that this is typical Texan intransigence,” Rodriguez said.

At the same time, Texas could indeed enter into a cooperative agreement grant program with the federal government, if HISA were structured that way, said Rodriguez. “You certainly could implement [HISA] through a regional compact. But Congress has chosen a different mechanism,” he added.

Sam Houston Race Park | Coady Photography

On the flip side, however, if the Fifth Circuit rules that the amended version of HISA remains unconstitutional–just as it ruled on the prior version of HISA–then the TXRC would be correct in barring HISA implementation in the state, said Rodriguez.

Rodriguez declined to weigh in on whether HISA could be implemented in Texas currently–that is, before the Fifth Circuit ruling drops–explaining that he had not researched the legal landscape of the question enough to opine on the matter.

More within Rodriguez's wheelhouse are the ideological whims and fancies of the various Courts of Appeals–including the Fifth Circuit.

“The Fifth Circuit has a reputation for being an eccentric court of appeals–they've reached judgments in the past that leave us law professors to scratch our heads and wonder exactly why their views are so outside the mainstream of other circuit courts. They do what they do,” he said.

When asked which way he thought the Fifth Circuit would rule on the constitutionality of the congressionally amended version of HISA, Rodriguez sided with the federal government. “I really don't anticipate the Fifth Circuit striking it down as unconstitutional,” he said.

In that scenario, said Rodriguez, the plaintiffs would likely file a petition of certiorari with the Supreme Court–a request that the Supreme Court orders a lower court to send the case up to them for review.

But in that instance, there would be no obvious “circuit split” between the Fifth and Sixth Circuit Courts of Appeals for the Supreme Court to weigh in on and consider, meaning it's unlikely the highest court of the land would take the case, he said.

“It's always important for those of us to check our biases, no matter how much expertise we have as law professors,” said Rodriguez.

“But in a nutshell, the issue is, 'can Congress, consistent with their authority, delegate authority to an administrative agency whose constitutionality has never been questioned–I'm talking the FTC–to establish rules for Thoroughbred horse racing?' And the answer to that now is clearly, 'yes,'” he said.

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