During a Thursday webinar hosted by the Maryland Thoroughbred Horsemen's Association, Horseracing Integrity and Safety Authority CEO Lisa Lazarus issued clarifications about the much-maligned “search and seizure” rule.
Listed as Regulation 5830 (B), which has not yet been approved by the Federal Trade Commission (FTC) and is still open for public comment, the rule states:
“The Agency may enter facilities, offices, stables, barns, or any other premises related to Covered Horses which are owned, controlled, or occupied by Covered Person(s) and: (1) inspect and search the premises including any books, records or property, and to take possession or a sample of any item or material believed to be, or that may lead to, evidence directly or indirectly of a violation of the Protocol; (2) search any Covered Person or Covered Horse on the premises; (3) access electronically stored data, including emails, computers, and mobile phones and devices without altering such data or device(s) other than to forward, back up, copy or make a mirror image of such data or device(s); (4) conduct identification and medication checks on any Covered Horse; (5) inspect and take copies of any records the Covered Person is required to keep under the Protocol; (6) examine any Covered Horse under the care of a Covered Person and take Samples from the Covered Horse for analysis.”
Former U.S. Congressman Thomas J. (Tom) Rooney, the director of the National Thoroughbred Racing Association, joined the call to explain that no written law can overrule the rights granted by the U.S. Constitution. The fourth amendment, which prohibits unreasonable search and seizure on private property, is one of those rights.
“The federal government cannot come to your door in violation of the fourth amendment, period,” Rooney said. “Even under HISA, you still have the right to demand a subpoena.”
The Authority, though created by federal law and overseen by the FTC, is an independent, non-governmental, non-profit entity.
Lazarus concurred, and made the clarification that private farms will not be restricted from possessing needles and medications necessary to care for horses in emergency veterinary situations. However, official training centers and racetracks will continue to prohibit needles and injectable medications.
She also explained the HISA has already revised the draft regulations to narrow that rule.
“The language in the 'Search & Seizure Rule' came from the HISA act itself,” Lazarus said. “That is the power that Congress wants us to have, and we have voluntarily narrowed that power… We don't have the intention of using that at all. The only way you would see us exercise that power is in a horse abuse issue or doping issue.”
The Arizona Department of Gaming's Racing Division has reached settlement agreements with trainer Juan Pablo Silva and jockey Fausto Rodrigues Da Silva in the matter of Juror, who was pulled up in the fourth race at Turf Paradise on March 10, 2022.
Settlement agreements in both cases, signed June 13, state there is “insufficient evidence” to substantiate a violation of state racing rules and statutes. Both licensees have had their suspensions and fines dropped and have agreed to waive the right to further appeals or judicial remedies.
Juror was entered into a claiming race on March 10 for a $3,500 tag, having last raced for a $30,000 tag on Feb. 1. Da Silva pulled the 1-20 favorite up a few jumps out of the starting gate and later told the stewards he thought the horse had banged his shoulder going into the gate and that he was not comfortable with the way the horse was traveling as they broke.
Da Silva was given a 30-day suspension and stewards wrote a ruling citing Da Silva for “conduct detrimental to racing” and “for his failure to take his mount … to the track vet for an examination, after he suspected that the horse might have an injury.”
Juror was claimed from that race and because Arizona does not have a voided claim rule, he became the property of his new owners as soon as the gate opened, despite pulling up lame.
Juror was later placed on the veterinarian's list for a lameness in his left front leg. He was examined prior to the race but did not allow state veterinarian Dr. Susan Gale to palpate and fully flex his left front. He has since been retired and placed in a home for a second career.
Amy Cook, executive director of the Texas Racing Commission, issued a letter to “All Occupational and Business Licensees” on Monday, June 13, stating that the import and export of pari-mutuel simulcast signals will not be conducted at Texas racetracks if the Horseracing Integrity and Safety Authority asserts control over regulatory supervision on July 1, 2022, as scheduled.
“We are denying HISA jurisdiction by disapproving signal export for all 'covered horse races,'” Cook told horseracing.net. “Our goal is the prevention of regulatory chaos, and the cost will be the loss of revenue in that export signal … but you cannot put a price on certainty.”
Elimination of in-state wagering on imported signals and out-of-state wagering on Texas tracks will deliver a severe economic blow to the business. This is especially true in Texas, where advance deposit wagering is illegal and all legal bets must be made at a racetrack in-state. Upwards of 90% of handle comes via simulcasting, industry studies have shown.
Cook's letter explains that the commission will allow pari-mutuel wagering on in-state races only: “Since the Texas Racing Commission regulates all aspects of Texas horse racing, including, in particular, pari-mutuel and simulcast wagering in Texas, the application of federal law pursuant to HISA in any aspect of horse racing regulation for a particular race or meet will necessarily preclude the Texas Racing Commission from full compliance with the Texas Racing Act and will, therefore, necessitate that no such affected race shall be allowed to conduct on-site pari-mutuel wagering or provide simulcast export signal. Any such request will, of necessity, be denied by the Texas Racing Commission.”
HISA CEO Lisa Lazarus met with Cook last week after an exchange of letters, but it appears little was accomplished.
“We told Lisa that there should be a delay in implementation for 18-24 months because it was so unclear what they will do on July 1st,” Cook told horseracing.net. “It is the best decision for my state, and even though I appreciated her coming to visit, Texans deserve clarity from their regulatory agency.”
On July 1, the first round of new regulations are scheduled to go into effect as a result of the Horseracing Integrity and Safety Act (HISA). HISA will seek to bring about the uniformity in medication, testing, and safety regulation and enforcement which so many in the racing industry have asked for in recent decades.
As the Horseracing Integrity and Safety Authority fights multiple lawsuits challenging the constitutionality of the new organization, it remains to be seen when, whether, and how it will implement new rules. It has been made clear by those working for the Authority so far that it will not be a night-to-day change between June 30 and July 1, 2022, especially since the Anti-Doping and Medication Control Program will not go into effect until Jan. 1, 2023. There will also be a phase-in process for its Racetrack Safety Program, which in many ways will seek to codify best practices suggested by the NTRA's Safety and Integrity Alliance and the Association of Racing Commissioners International.
Assuming the Authority is able to bring about this change, there are a few jurisdictions and racetracks that will be in for a rude awakening. In this series, we take a look at where American racing stands now with key parts of the new regulations. What do we know about the history behind new rules? How have some states fared after implementing safety rules voluntarily? What has stopped some jurisdictions from adopting these changes on their own?
We hope this pre-HISA snapshot can inform fans and those in the racing industry about the changes ahead.
Find Part 1 in this series, on hair testing out-of-competition, here.
The case of a horse named Juror, who was pulled up soon after the start of a maiden claiming race at Turf Paradise on March 10, was the source of much discussion and debate. The horse, who was trained by Juan Pablo Silva and piloted in that start by Fausto Henrique Da Silva, was pulled up only a few jumps out of the starting gate. Rider Da Silva would tell the stewards that he thought the horse warmed up fine but took an odd step right behind the gate and then banged his shoulder going into the gate. When that was followed by what Da Silva thought were awkward strides just after the break, the jockey pulled the horse up.
In their initial interview with Da Silva, Arizona stewards were especially curious whether his stop on the horse was done at Silva's instruction. The reason they wanted to know was because the horse, who was dropping from a $30,000 claiming tag in his last start Feb. 1 to $3,500 on March 10, was claimed.
“Back when I was riding, I've had people tell me, 'Take ahold of this horse because he's not that good but I want to make sure he gets claimed,'” said an unidentified steward audible in a recording of the officials' first interview with Da Silva on March 11. “We're trying to figure out if that's what happened here because it just appears this was a pre-meditated deal to take this horse up and not let him run.”
The premise for the steward's statement is the fact Arizona does not have a void claim rule, which means that once the gates opened on March 10, Juror was no longer the property of Tijuana Racing Stables and trained by Silva, but was the responsibility of new owners Gary and Deborah Lusk and trainer Eliska Kubinova. As long as he started the race, he was off Silva's books, and if he earned any money in his placing, that would go to Tijuana Racing Stables.
Juror was examined at the test barn by Dr. Susan Gale, chief veterinarian for the Arizona Department of Gaming. Gale found the horse to be lame in the left front leg at the jog. (She was also responsible for clearing the horse to run that morning, despite being unable to palpate the horse's left front when the horse pulled back and reared each time she tried to touch it.) Juror was later rehomed for a non-racing career.
Da Silva would later be given a 30-day suspension for not requesting a veterinary check on the horse at the gate. Silva would be suspended 180 days after stewards say he entered the horse knowing it was “sore and unfit to race.”
Both licensees are in the process of appealing those suspensions.
The concept of the void claim rule was first introduced in 2006 at the very first Welfare and Safety of the Racehorse Summit, which is organized by The Jockey Club. At first, safety experts suggested a good rule would invalidate claims on horses who died in the course of a race or were euthanized on track due to a catastrophic injury. Since then, some jurisdictions have expanded the concept to give claimants the option to void if a horse is vanned off a racetrack with an injury, or situations where a horse is declared by an official veterinarian to be lame after the gallop out or in the test barn after the race.
On July 1, when the safety regulations of the Horseracing Integrity and Safety Authority go into effect, all states will have the same void claim rule. Rule 2262 of the HISA Racetrack Safety Rules states that claimed horses will go to the test barn. Claims will be voided if the horse dies, is euthanized, or is vanned off the track, if the regulatory veterinarian determines the horse to have bled, be “physically distressed, medically compromised, unsound, or lame” within one hour of the race, or if the horse tests positive for a prohibited substance.
Owners dropping a claim will be able to select an option on the claim form if they want the horse regardless of whether the horse is placed on the veterinarian's list, if the horse bleeds, or if the horse has a positive test post-race.
The current landscape Although the idea has been around for some 16 years now, there's still variability in what will void a claim, depending upon which state you're in. In some places, claims are voided automatically if certain conditions (like death or euthanasia of the horse) are met, while in other states, stewards have the authority to decide whether a situation merits a void. In Arkansas, a claimant can request a claimed horse be tested for certain PEDs and void the claim if they're found to be positive; the claim may also be voided if the horse dies or is vanned off, but if the horse suffers an injury and is not vanned off, the voiding of a claim is left to the stewards' discretion.
In Pennsylvania, a horse who tests positive for a prohibited substance may have the claim voided, but a horse's death, injury, or vet's list status does not void a claim.
In Ohio, a horse is considered claimed as soon as it starts the race, regardless of whether it finishes.
Illinois code specifically states that “said claimant shall then become the owner of the horse irrespective of its physical condition during or after the race.”
In West Virginia, a claim is voided if the horse dies or is euthanized on the race course “or an adjacent area” though regulations do not give any timeframe for such an adjacent euthanasia. Trainers racing there are required to send the new owner a record of all corticosteroid injections given to the horse over the previous 30 days within 48 hours of transfer.
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Other authorities have taken the void claim rule a step beyond HISA's regulations. In at least one state (Florida, via house rule), a significant or career-ending injury discovered as late as 24 hours after official off time of the race may result in a voided claim, contingent upon agreement by a three-veterinarian panel.
In practical effect
Many experts in states that have implemented void claim rules say they're effective at accomplishing their mission – reducing the number of horses harboring injuries that enter claiming races. In 2018, Dr. Rick Arthur (then the equine medical director for the California Horse Racing Board) told former regulator Joe Gorajec the CHRB had determined that 15% of horses claimed never started again. After implementation of the rule, that rate went down to 3.57%.
“In other words,” Gorajec wrote in a 2018 blog post, “the rule has resulted in a reduction of racing these presumably unsound horse by more than 75%.”
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In 2019, data from the Equine Injury Database indicated that tracks which enforce void claim rules have been found to have markedly fewer fatalities per 1,000 starts than tracks without those rules. Dr. Tim Parkin, head of the Bristol Veterinary School in the United Kingdom and a professor of veterinary epidemiology, found in studying the database that the risk of fatalities per 1,000 starts in claiming races held prior to introduction void claim rules was 2.2, and afterwards fell to 1.6 per 1,000 starts. For maiden claiming events, the difference in fatality rates before and after void claim rules wasn't statistically significant. Unsurprisingly, the tracks with the strictest void claim rules saw the lowest fatality risk rates after rules went into effect.
“I think from this, there's no evidence that introduction of a void claim rule can cause any harm,” Parkin said during the 2020 Welfare and Safety of the Racehorse Summit. “It's not going in the wrong direction. I would encourage the greater use of these void claim rules in tracks that have yet to introduce them.”
That doesn't mean the transition has always been smooth. Arthur said he first suggested the change in California in 2008, but it didn't go into effect there until 2013.
“Nobody likes change in horse racing,” Arthur told Gorajec in 2018. “A lot of people think the poker aspect of claiming is part and parcel of horse racing. Unfortunately, it's the horse that gets the brunt end of that.
“The real advantage (of the rule) is that you are not treating horses as commodities. You can't get rid of a problem by dropping it into a claiming race. You have to actually address the problem.”
Hesitations
Not all horsemen are convinced of Arthur's viewpoint.
In Kentucky, expanded voided claim regulations were proposed in 2019, drawing ire from the Kentucky Horsemen's Benevolent and Protective Association. In testimony before a legislative subcommittee, KHBPA executive director Marty Maline appeared to oppose regulations that would void a claim.
“As far as the voided claiming rule, it basically offers a warranty to those who engage in predatory claiming practices. This rule exacerbates the growing problem I have outlined. There's an absence of data supporting the purported welfare benefits to the horse of a voided claim,” Maline said at the time.
Maline voiced concern that claimants would be able to void claims themselves if they had any reason for buyer's remorse afterward, even though the determination of whether a claimed horse is lame is left to the official veterinarian, not the claimant.
The rule has been in place in Kentucky for several racing seasons now, but Maline isn't sure it's necessary.
“Initially, the void claiming rule was introduced as a safety issue,” Maline wrote in a statement to the Paulick Report when queried for this article. “However, it is important to point out that a horse previously to working and entering is required to be examined by a racetrack practitioner. Next, on race day, the Kentucky Horse Racing Commission (KHRC) Veterinarians thoroughly examine the horse the morning of the race. They may also reexamine the horse in the saddling paddock or at the starting gate prior to running. Therefore, it is unlikely that someone would even consider running a horse with some type of infirmity, as was suggested when the rule was proposed. There are various reasons why horsemen decide to run a horse in a particular race, the main one is to assure the horse is competitive and capable of earning purse money.”
There can be problems with a void claim rule that's not clear. In the summer of 2021, the last race of Divine Interventio created a stir between between trainer John Robb and the Delaware Thoroughbred Racing Commission.
Robb trained Divine Interventio, who was pulled up during a claiming race on July 24 at Delaware Park. The 8-year-old was vanned off the track with a sesamoid fracture and significant soft tissue damage. Trainer Gary Contessa had dropped a claim on the horse, but there was some confusion. Robb's team was told as the horse made the van ride back to the barn that the claim would be voided and wanted to try to save the horse; Contessa's assessment was that the horse could not be saved and the only humane option was euthanasia. Eventually, after some tense phone calls, officials determined the claim had to stand, and the horse was transferred to Contessa's barn and euthanized.
Then, on July 31, stewards issued an order voiding the claim, having been made aware the commission had passed a void claim rule at some point earlier in the COVID-19 pandemic which voided claims for horses vanned off the track. Robb's owner was out the money from the now-voided claim, and was out the horse.
In the end, a series of hearings with Robb determined the commission's new rule had not gone through the necessary publication process to be active on July 24, and the race was technically run under the old rule, which only voided claims in cases of death or euthanasia on the racing surface. Robb was later told the void claim will stand because testing during the necropsy revealed an overage of Robaxin.
Trainer Chris Block celebrates his 45th stakes win at Arlington Park in 2019
Then there are horsemen who have concerns about the logistics of implementing the HISA rule. Chris Block, president of the Illinois Thoroughbred Horsemen's Association, pointed out the monitoring of claimed horses after the gallop out and for an hour in the test barn is a step beyond what currently happens in Illinois. That could require more veterinary resources than what the state currently has.
Block said the official veterinarians in Illinois are well-thought of by horsemen, but he could also see that having the power to void a claim after a race could create friction between horsemen and vets at tracks where the relationship is acrimonious.
There's also not much clarity for the horsemen at this stage on who will foot the bill for additional veterinary help if the void claim or other rules trigger a need for more personnel than what a state currently has. That may be dependent upon whether the state racing commission or racetrack is charged with footing the bill for HISA.
“When you're sitting here in Illinois and the game is evaporating in front of us with the disappearance of Arlington, we're extremely worried about the bill HISA sends to Hawthorne Race Course and what Hawthorne Race Course is going to do,” said David McCaffrey, executive director of the ITHA.
Block said he's not opposed to the void claim rule, though he knows other horsemen in his state likely will be.
“A lot of guys are going to say, well [claiming is] buyer beware,” said Block. “Well, that's what got us in trouble, was buyer beware. The poor buyer had no clue what he was getting into and then he gets something that's not right and he or she wants to get rid of it the next time around and it gets worse as things go forward.
“I think it's probably in the best interests of racing going forward.”
For critics of a void claim rule, Block said it is helpful that claimants have the option to designate they want to take a horse even if it tests positive for a substance or pulls up lame, which may be preferred for someone who wants to claim a horse for breeding or retirement purposes.
“It's far from perfect, but a lot of things are far from perfect in our industry,” he said.
