Six weeks into implementation, the big topic at most regulatory meetings this summer is the Horseracing Integrity and Safety Authority. The Racing and Gaming Conference at Saratoga was the latest to feature a panel breaking down what is and isn't working so far about the new system.
The panel included moderator Alan Foreman, who is the chairman/CEO of the Thoroughbred Horsemen's Association; trainer/veterinarian John Kimmel; Authority CEO Lisa Lazarus; ARCI president/CEO Ed Martin, and New York State Gaming Commission executive director Rob Williams.
Predictably, not everyone agreed on all the topics of discussion. A few key takeaways:
–Foreman pointed out that there was considerable skepticism at the same event last year about whether the Authority would indeed be up and running by the July 1, 2022 deadline set by lawmakers, and whether it would be stopped in its tracks by constitutional challenges. Foreman, who is also an attorney, agreed that litigation would continue to be a part of the organization's future and that it may still be going on at the time of next year's conference. He also believes the constitutional question should be largely decided after two federal judges sided with the Authority on constitutional questions.
–Martin said that while his organization, which is comprised of racing commissioners and staff, are supportive of HISA, they're not afraid to point out problems they see with its implementation so far.
“My members don't think this was the right way to go, but we're here now and they don't want this to turn into a mess,” he said.
Martin characterized the plaintiffs in the federal suits as desiring only correct execution of the Authority. For his part, he voiced concerns about transparency of the organization, which has been a touchy issue for him from the beginning. Martin said one RCI member asked to sit in on a meeting of the committee responsible for drafting the anti-doping and medication control rules, which will be going to the Federal Trade Commission this week for approval and should roll out Jan. 1. The member was told they could not attend. Martin also mentioned that some groups (though he did not specify who) had been required to sign non-disclosure agreements with the Authority prohibiting them from discussing their interactions with the Authority.
Additionally, Martin expressed frustration with the oft-cited timeline for the Authority's creation and implementation.
“What I do know in hindsight, because hindsight is always 20/20, is that the nominating committee wasted five months, five critical months, with a legislative deadline through a dog and pony show about a wonderful search to find the most qualified people [for the HISA boards],” said Martin. “Most of the people were already known. That could have been done in December and we could have had an executive director put in place.”
–Lazarus disagreed with some of Martin's points, and was quick to note that the Authority is in the process of overhauling its website to include some of the wish list items that were in Joe Gorajec's op/ed in the Paulick Report last week.
She said the Authority is also mindful of the need to help all industry participants feel they have a voice in the creation and enforcement of regulations. She estimated that 85% of the suggestions submitted by the Thoroughbred Horsemen's Association on the draft guidance of anti-doping regulations were taken on board and prompted revisions in the current draft.
“We had more time with the anti-doping program [than the safety program] and we've tried really hard to make sure we're incorporating things that make sense,” she said.
–The Authority's status varies across states. Seventeen of 21 racing states have some form of agreement to enforce HISA regulations, whether a formal contract or a letter indicating their willingness to use existing personnel to enforce some or all of the national regulations. Five of the 21 have also entered into financial agreements.
Financial agreements mean that the state is accepting responsibility for collecting and paying the HISA costs allocated to that state. If a state does not have a financial agreement with the Authority, then the responsibility to pay falls to the individual racetracks in that state, who will do collections together with horsemen.
New York is one of the states that does not have enforcement or financial agreements with the Authority. Williams said the state declined to be responsible for collecting and remitting assessment expenses, but it also did not accept responsibility for enforcing HISA regulations.
“It's an interesting paradigm from our perspective, because obviously what's important to us is what's the proper expenditure of state tax revenues,” said Williams. “One of the examinations we needed to do is asking, is it appropriate for state regulatory staff to undertake something as a vendor for the Authority? Especially when we don't have legislature authority to sign off on that. We are heavily unionized as a state, with collective bargaining agreements relative to what our employees can and what they can't do.
“We declined to accept that responsibility, but it's not a permanent decision; It's something that's actively being reconsidered and examined,” he said, noting that the state's decision not to use their employees to enforce HISA regulations is likely a temporary one.
Despite this impasse, Lazarus praised New York for being as cooperative as they could be under the circumstances with help from the New York Racing Association and New York Thoroughbred Horsemen's Association.
–Lazarus said that (like this publication) she gets a number of emails from people upset about HISA rules that don't exist. She recalled one call from an exercise rider who was distraught because he couldn't believe the Authority was going to restrict exercise rider weights to 160 pounds or less, which would force him to quit his job. (The Authority does not have any regulations dealing with jockey or exercise rider weights.) Lazarus asked where he'd gotten the idea there was such a rule, and he said he'd heard that through word of mouth.
A reminder that current and draft regulations can be reviewed here.
–There has been a lot of hand-wringing over the costs for the anti-doping and medication control program, which have not been calculated yet but which are separate from the costs for the safety program. Those in small states have expressed concerns about how much more they'll need to pay, particularly if they have been accustomed to cheap contracts and low testing volumes. Lazarus said the question of whether or not state staff will be permitted to pitch in on HISA enforcement will become important here.
The Authority has appointed The Center for Drug Free Sport to handle the anti-doping program, and that organization will oversee a new welfare unit to execute those rules. States will be able to use their existing drug testing budgets to pay for the anti-doping program. If they also allow existing test barn and investigative staff to collect and process samples for that unit the way they currently do for states, then Lazarus said the state will be given a credit for the expense of that employee. That credit can be applied to the state's anti-doping bill.
–Kimmel expressed concern that as the regulations for horses at the track get more stringent, more trainers may seek to get away from prying eyes at farms and training centers.
“I think there's going to be a tremendous inequity in how that's going to be managed,” he said. “It would take a huge police force to make those rules and regulations the same for both parties.”
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