Texas Federal Judge Won’t Grant Briefing Stay to HISA

Facing a United States Court of Appeals decision from the Fifth Circuit that the Horseracing Integrity and Safety Act (HISA) is unconstitutional and battling three similar lawsuits in various stages within the federal court system, the HISA Authority and the Federal Trade Commission (FTC) were informed Monday that a U.S. District Court judge in Texas won't grant those defendants a requested stay that would halt the briefing schedule in that case pending a final resolution of the Fifth Circuit order.

“No Good Cause Exists to Stay This Action,” wrote U.S. District Judge Matthew Kacsmaryk (Northern District of Texas, Amarillo Division) in his Dec. 12 order. “This is not one of the 'rare' circumstances in which Plaintiffs should be compelled to stand aside while Defendants litigate another case. Defendants make no showing of 'hardship or inequity' in complying with the briefing schedule they previously agreed to. Defendants were already aware of the then-pending appeal in [the Fifth Circuit] when they agreed to the schedule.

“The Court recognizes that the Fifth Circuit's decision [declaring HISA unconstitutional] could moot this challenge or clarify some of the issues,” the judge continued. “But Plaintiffs advance seven distinct constitutional challenges to HISA-including the nondelegation doctrine. Plaintiffs argue HISA violates the doctrine on three alternate bases. [The Fifth Circuit decision] considered only one of those bases. Thus, the Court does not anticipate that the final resolution of [the Fifth Circuit decision] will necessarily clarify the issues in this case by much.

“Additionally, Defendants are considering whether they will petition for a writ of certiorari before the Supreme Court. Hence, it could be months or even years before [the Fifth Circuit decision] reaches finality. Until then, a stay could unfairly harm Plaintiffs because [that order] only binds the parties in that case,” the judge wrote.

The judge did, however, give the HISA Authority 60 days of extra time by mandating a revised briefing schedule that now calls for the HISA and FTC defendants to file their combined responses to the plaintiffs' motion for summary judgment on or before Mar. 6, 2023, which in effect grants the defendants' motion in part.

The plaintiffs in the case are Global Gaming LSP, a limited liability company that owns Lone Star Park; Gulf Coast Racing LLC, the owner of a greyhound track in Nueces County, and both LRP Group Ltd. and Valle De Los Tesoros, which are two limited partnerships separately looking to operate new horse tracks in south Texas. They collectively filed their suit July 29, seeking declaratory and injunctive relief and a preliminary injunction against HISA.

The Fifth Circuit suit was initiated by the National Horsemen's Benevolent and Protective Association (NHPBA) back in 2021. That case was dismissed by a federal judge Mar. 31, 2022, but the Fifth Circuit reversed that decision Nov. 18.

That NHBPA lawsuit is separate from a similar 2021 anti-HISA complaint, again over alleged constitutional issues, headed by racing commissions and attorneys general in Oklahoma and West Virginia. That case, too, was dismissed by a federal judge on June 3, 2022, but the plaintiffs appealed the decision to the Sixth Circuit, which heard arguments on reversing that decision Dec. 7.

A fourth lawsuit, in which both HISA and the FTC are defendants in a complaint initiated by the states of Louisiana and West Virginia, plus the Jockeys' Guild, alleges unconstitutionality and federal rulemaking procedure violations regarding HISA's initial framework of regulations that went into effect July 1. According to the electronic court docket, there has been no filing activity in that case since Sept. 7.

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Texas Track Group Files Latest HISA Lawsuit

A group of entities associated with various racing-related industries in Texas, including the owners of Lone Star Park, has filed a new lawsuit against the Horseracing Integrity and Safety Act (HISA) in which declaratory and injunctive relief is sought along with a request for a preliminary injunction, according to court filing dated July 29.

Submitted to the United States District Court for the Northern District of Texas, Amarillo Division, the suit focuses on the relative power of the Horseracing Integrity and Safety Authority–the umbrella non-profit established by the Act–to implement the program.

This latest filing is in the same district court–but different division–as a separate lawsuit filed by the National Horsemen's Benevolent and Protective Association (NHBPA) in 2021.

Earlier this year, a federal judge threw out that case. The NHBPA subsequently filed an appeal with the Fifth Circuit Court of Appeals, which is pending.

“The 'Authority' is empowered by law to, among other things, subpoena documents and compel testimony, search businesses and private databases and seize documents, conduct adjudicatory proceedings, and prosecute actions in federal court like other federal prosecutors,” the latest filing states.

“No private individuals have such powers. No private individual can show up at one's door and demand documents and testimony under sanction of law. No private individual can conduct a private search and seizure. And no private individual has the power to hale another private citizen into court to enforce offenses against the public. But the “Authority” does,” the filing adds.

So far, the Texas Racing Commission (TRC) has refused to comply with Act, which went into effect at the start of July, arguing that under Texas law only the commission has the authority to oversee horse racing in the state. HISA's current remit covers only Thoroughbred racing.

As a result, the signal from the state's Thoroughbred tracks cannot be sent out of state and advance deposit wagering companies are prevented from taking betting on Texas Thoroughbred races. There are no Thoroughbred meets scheduled in Texas between now and the end of the year.

According to a spokesperson for the Authority, HISA will mount a legal defence “while the Authority's focus remains on implementing the Racetrack Safety program and finalizing Anti-Doping and Medication Control rules.” Implementation for the latter is scheduled for Jan. 2023.

“The majority of racing participants support HISA's mission to protect those who play by the rules and hold those who fail to do so accountable in order to keep our equine and human athletes safe and the competition fair,” wrote the HISA spokesperson.

“The immense collaboration with state racing commissions, stewards, veterinarians, racetracks, trainers, and other horsemen that has taken place to date is evidence of this support, and we intend to continue to fulfill our mandate and work to make the industry safer,” the spokesperson added.

The plaintiffs include Global Gaming LSP, a limited liability company which owns Lone Star Park, and Gulf Coast Racing LLC, which owns a greyhound racetrack located in Nueces County, Texas. Gulf Coast Racing is allegedly seeking to redesignate the track as a Class 2 horseracing track, according to the filing.

The other two plaintiffs consist of LRP Group Ltd. a limited partnership working towards “operating an active horseracing track” in the south of the state, the filing states, and Valle De Los Tesoros, a limited partnership similarly looking to operate a horseracing track in South Texas, one currently designated inactive by the TRC.

It's unclear whether the planned racetracks listed in the suit are intended for Thoroughbred racing.

Among the arguments the plaintiffs make is that the legal jurisdiction given the Authority is of government power “in general” and of executive power “in particular,” but that the current design of the Authority renders it unconstitutional, meaning it is exercising “nothing other than naked legislative power.”

The plaintiffs write: “The 'Board' of the 'Authority,' comprising private individuals appointed through a Nominating Committee whose membership is established by the Authority's own incorporation documents, has not been appointed through the constitutionally required mechanisms for the exercise of executive power.”

To argue their position, the plaintiffs reference such historic texts as The Federalist papers of U.S. founding father, Alexander Hamilton, and “Commentaries on the Laws of England,” by William Blackstone, an English jurist from the 18th century who long suffered terrible gout.

This latest lawsuit constitutes the fourth legal challenge to HISA. Aside from the NHBPA filing, a case filed by the state of Oklahoma in the United States District Court, Eastern Division of Kentucky, is similarly ongoing.

Late last month, Louisiana and West Virginia won a preliminary injunction in federal court aimed at keeping HISA from being implemented in those two states until the Act's constitutionality gets decided in full.

HISA has since filed motions for stay pending appeal with the United States Court of Appeals for the Fifth Circuit.

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This Side Up: Past Specters, Present Ghosts

How poignant that, in this of all weeks, the two most breathtaking winners on Belmont day should both have prompted comparisons with Ghostzapper, whose GI Breeders' Cup Classic at Lone Star Park in 2004 was surely the greatest Thoroughbred performance ever on Texan soil. Because while the whole racing world came to Dallas that day, it appears that there will be no reciprocal embrace when it comes to the standards sought—not just federally, but internationally—to give American horseracing credibility in the contest for public engagement in the 21st Century.

It's precisely because some individual states, obdurately or cynically indifferent to the bigger picture, can prove so undeserving of their precious autonomy that we need to find a better way. As it is, one that has produced many great horsemen and women, not to mention a Triple Crown winner in Assault, is now menaced by strangulation as regulation. It feels like the political equivalent of some reckless sadomasochistic excess that turns into a tragic accident.

Anyway, to more cheerful subjects. Or maybe not, because while it's gratifying that the original, at 22, is still recycling his genetic prowess at Hill 'N Dale, the idea that we might have not one new Ghostzapper, but two, feels too far-fetched a coincidence given how rarely we are favored by so freakish a talent.

It's pretty clear what both Flightline (Tapit) and Jack Christopher (Munnings) have to do, if they are to sustain comparisons so far stimulated by the sheer exhilaration with which they've been dominating all comers. And that's eventually to stretch out the way Ghostzapper did, that day at Lone Star.

As things stand, there does at least appear to be a tantalizing possibility that they could end up doing so together, and in the same race as their great template. Until they do, however, it feels a little premature for that contentious adjective, “great”, to have been applied as liberally as it already has to Flightline, in particular.

There's no denying his extraordinary natural ability, and it's exciting that he's bred to be at least as good round a second turn. Thankfully we may be able to test that hope pretty soon, or as soon as will be allowed by a career schedule that promises to make him a poster boy for the notorious diffidence of modern horsemen, compared with their predecessors. You would think that a son of Tapit, with a second dam by Dynaformer, might be equal to more old-fashioned campaigning, but at least those influences will be squarely behind him once his stamina is examined.

From a European perspective, the rise of Flightline attests to a different way of measuring things over here. After clocking those monster Beyers in maiden and optional allowance sprints, no American horseplayer was surprised to see him separate himself from Grade I rivals with equal contempt—and he's now averaging 112 through four starts.

In a racing environment less beholden to the stopwatch, however, you might still hear one or two caveats that in the GI Met Mile he beat one horse that really needs 10 furlongs; another that put in a conspicuous backward step; and a pure sprinter. Nor would such a trifling loss of rhythm, in some light early traffic, be taken terribly seriously. On the other hand, nobody could fail to be dazzled that he could do this off a long lay-off, shipping for the first time, and at a new trip.

What should really sharpen European antennae, however, is the other “F”-word in the room. When it comes to greatness, no modern horse on the other side of the water has achieved more consensus than Frankel (GB) (Galileo {Ire}). So much so, that at the time it took some nerve to dare question the conservatism with which he was campaigned, beating up the same guys in the same discipline until his penultimate start, and never leaving his stall for a single night. While there were admittedly tragically extenuating circumstances, the fact is there had never been a time when his late trainer Sir Henry Cecil would have been comfortable about risking his champion's immaculate record in, say, the Breeders' Cup Classic or Arc.

An unbeaten record does tend to become a burden that stays the hand of adventure. Frankel was always being measured against specters of the past, but never went looking for trouble even against his contemporaries. It's wonderful that connections of Flightline are disposed to explore the range of his brilliance. But having relaunched him on the same day that the Kentucky Derby winner bombed out in the third leg of the Triple Crown, after spurning the second, let's hope they remember our collective mission—already mentioned, in a different context—of public engagement.

Flightline is proving one of those paragons that the bloodstock business needs to work out, just every so often, as a seven-figure yearling from a noble maternal line who is going to repay those stakes, big time, as a stallion. But potentially exposing his wares across no more than half a dozen starts wouldn't just short-change breeders of the future, who need evidence that he's a reliable vessel of the kind of toughness latent in his page. It also gives him little chance of reaching the kind of public so much more accessible in the era, for instance, of his 10-for-47 ancestress Lady Pitt (Sword Dancer).

As for Jack Christopher, while we naturally respect Chad Brown's direct experience of Ghostzapper, you would think that Munnings is going to need quite a bit of help from the mare, if he is to get their son home in the Breeders' Cup Classic. Jack Christopher's dam is by Half Ours, hardly a stamina brand, and is also a half-sister to Street Boss, an unusually fast horse for a son of Street Cry (Ire).

Their mother, incidentally, was by Ogygian—and so contributes to the redemption of Damascus, as a distaff influence, after failing to establish a sire-line. Daughters of Damascus himself produced Red Ransom, Boundary and Coronado's Quest, plus the granddam of Maclean's Music. Among his “failed” sons, meanwhile, Bailjumper is damsire of Medaglia d'Oro; Accipiter gave us the second dam of Cairo Prince; and Ogygian, above all, has secured a lasting foothold as damsire of Johannesburg.
Johannesburg's son Scat Daddy, of course, managed to come up with a Triple Crown winner from a mare by none other than Ghostzapper. So we do know that the most brilliant horses can carry their speed farther on dirt than on paper.

Certainly Jack Christopher for now looks the most charismatic member of a crop that remains a long way short of resolving its hierarchy. Actually all it may take is for one barn to establish its own pecking order, and the rest may follow, with Jack Christopher on nodding terms with Zandon (Upstart) and Early Voting (Gun Runner).

Between Early Voting and Mo Donegal (Uncle Mo), the GII Wood Memorial has now furnished two Classic winners. If Mo Donegal could win the GI Travers, too, he would emulate Damascus as one of five horses to have won an “Empire State” Triple Crown of Wood, Belmont and Travers.

Damascus, to be fair, raced 16 times at three. He lost out by half a length in the Gotham in a tooth-and-nail duel with Dr. Fager, and came out six days later to win the Wood by half a dozen lengths. Okay, maybe we have to accept that most horsemen nowadays consider it unreasonable to campaign a modern racehorse the way Frank Whiteley Jr. did Damascus, who won from six furlongs to two miles. But if we cede that point, however reluctantly, then let's hope that some others in our industry can recognize the need for a more obviously wholesome form of modernization.

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Lone Star Park Celebrates 25 Years

Lone Star Park celebrates its 25th anniversary season this year with the continued optimism that has permeated Texas racing since passage of the 2019 legislation that channeled a portion of sales tax on horse feed and supplies into purses. The Grand Prairie meet runs April 28 through July 24, most Thursdays through Sundays, plus Memorial Day May 30 and July 4. There is no racing on Thursdays May 5 and 26, June 2 and 30 and July 7. Marquee stakes days include the Lone Star Million Day on Memorial Day, Lone Star Showcase Day on June 19, Summer Turf Festival on July 16 and Stars of Texas Day on July 17. Lone Star Park is scheduled to pay out $12.8 million to horse owners over the 48-date meet, averaging about $268,000 a day.

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