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HBPA: ‘Best Of Both Worlds’ For HISA Is ‘Worst Of All Worlds’ For Horsemen

With oral arguments in the United States Court of Appeals for the Fifth Circuit now five weeks away, the National Horsemen's Benevolent and Protective Association (NHBPA) filed a legal brief Aug. 25 underscoring that the Horseracing Integrity and Safety Act (HISA) Authority unconstitutionally “wants the best of both worlds” by allegedly portraying itself as both a governmental body or a private organization “depending on which suits its interests on any individual argument.”

“Sometimes [the Authority] wants to be like a government entity, with the power to compel registration, collect mandatory fees, conduct searches, draw blood and urine samples, and impose sanctions with 'the force of federal law,'” stated the 36-page brief filed Friday by the NHBPA and 12 of its affiliates.

“Other times it wants to be a private business league, choosing its own board, running its own corporate affairs, and exempt from the Appointments and Appropriations clauses, the Freedom of Information Act, etc…” the brief continued.

This purported dual nature of the Authority, the NHBPA alleged, “exposes the overall flaw” by which the 2022 rewrite of the HISA law should be struck down.

“Nothing could be more unfair or inequitable than to have a regulator with all the powers of government but exempt from all the democratic accountability and safeguards for liberty imposed on government,” the NHBPA's filing stated.

“The best of both worlds for the Authority is the worst of all worlds for horsemen,” the NHBPA's filing asserted.

The Fifth Circuit oral arguments scheduled for the first week in October represent the latest attempt by the NHBPA to derail the HISA law via an underlying lawsuit that has persisted in the federal court system for nearly 2 ½ years.

In addition to the HISA Authority, personnel from the Federal Trade Commission (FTC) are defendants in that suit.

Back on Aug. 4, the Authority defendants filed their own brief that told the court the continued legal attacks by the NHBPA are futile because “Congress, the Executive, and all three federal courts that have considered the amended Act have reached the same conclusion: HISA is now constitutional…

“Appellants' scattershot attempts to invalidate the Act on other grounds come up short, too,” the Authority's brief continued.

The NHBPA's Aug. 25 filing swatted back at those claims, citing a legal precedent that stated “it is a central tenet of liberty that the government may not…allow private individuals to regulate other private individuals.”

As the NHBPA put it, “That is now what happens every day in horseracing. The district court must be reversed, and the Act declared unconstitutional, again.”

The first time the HBPA plaintiffs attempted to challenge the original 2020 version of the HISA statute in federal court, on Mar. 15, 2021, the suit was dismissed, on March 31, 2022.

The HBPA plaintiffs then appealed, leading to the above-referenced Fifth Circuit Court reversal on Nov. 18, 2022, that remanded the case back to the lower court. In the interim, an amended version of HISA got passed by Congress and was signed into law by President Joe Biden on Dec. 29, 2022.

On May 4, 2023, the lower court deemed that the new version of HISA was constitutional because the rewrite of the law fixed the problems the Fifth Circuit had identified.

The HBPA plaintiffs then swiftly filed another appeal back to the Fifth Circuit, which is where the case stands now.

“The FTC and the Authority continue to tie themselves in knots trying to get around two obvious problems: the Act, even as revised, does not allow the FTC to amend or modify rules when they are proposed by the Authority,” the NHBPA's Aug. 25 filing stated. “And the Act, even as revised, still requires the FTC to approve rules written by the Authority on a consistency basis, which this Court held to be a violation of the private non-delegation doctrine.”

The NHBPA alleged in its filing that the Authority and the FTC's “solution to a lack of public accountability is to find an additional way to eliminate public accountability, making matters worse.”

The NHBPA's filing warned of dire ramifications to society in general if the Fifth Circuit doesn't declare the recently amended HISA law unconstitutional.

“If this Court ratifies this law, we will see more and more of our democracy slip away as Congress increasingly turns to this convenient charade of private self-regulatory corporations to govern entire industries,” the NHBPA's filing stated.

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Fasig-Tipton Midlantic Fall Catalogue Online

A total of 392 yearlings have been catalogued for the upcoming Fasig-Tipton Midlantic Fall Yearlings Sale to be held at the Maryland State Fairgrounds in Timonium Oct. 2 and 3. Hips 1-124 will be offered during the Monday session, which will begin at 3 p.m. and hips 125 through 392 will be offered during the Tuesday session, which will begin at 11 a.m.

“This year's catalogue features nearly 400 yearlings representing a wide variety of national and regional sires and state-bred programs,” said Midlantic Director of Sales Paget Bennett. “Each year, the Midlantic Fall Yearling sale attracts new buyers based on recent graduate successes, which includes GI Spinaway S. winner Leave No Trace among more than 200 stakes wins and placings in 2022 and 2023. This is a sale not to be missed.”

The catalogue can be viewed online here and will also be available via the equineline sales catalogue app. Print catalogues will be available by Sept. 5.

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Adapt, Evolve, or Be Forced Out of Existence. Letter to the Editor: Amanda Luby, Welbourne Stud

In racing, there is nothing more horrific than watching a horse break down in front of you. My heart goes out to every person connected with each of the horses that has lost its life in this manner and to each fan who's witnessed this. As my husband said after Maple Leaf Mel's tragic end, “They're just innocent animals!” He left immediately after her death, horrorstruck, and, fortunately, was not at the track on Travers Day. Like countless other casual fans who've seen such awful things, it is unlikely that he will ever return to watch another race, and racing needs to understand this is the visceral reaction casual fans experience when they see these beautiful animals falter so terribly. These fans, these bettors, don't come back to the sport.

I was at Saratoga on both Whitney and Travers Day. Maple Leaf Mel and New York Thunder's injuries were the most gruesome I've ever seen in my decades in horse racing. I left the track in tears this past Saturday, having my own visceral reaction, believing strongly that NYRA should have shut down racing immediately.

A friend of mine is a crisis communications expert and she was with me this past Saturday. She's done work for the NFL and some of the world's most complex companies. She currently is the head of U.S. Communications for one of the largest law firms in the world. She has come to racing later in life, but is a horsewoman first and foremost. After witnessing New York Thunder's demise on Saturday, she summarized her thoughts below:

I get the complexities of shutting down the massive machinery of a racetrack. The business model impacts countless others that depend upon the race meet continuing. But you cannot dismiss the concerns of the public. While I can understand the need to take a broader look at the whole situation, the reality is that the optics of the breakdowns are awful. And you can't have horses running down the stretch on three legs. To give an NFL analogy, as soon as plaintiffs' lawyers could prove a causal link between football and head injuries, the sport had to change [because it risked losing everything]. Every time a horse breaks down, racing's license to operate gets shredded. Change has to happen immediately.

While I wasn't born into the sport, I've been in it my entire life. My passion for Thoroughbred racing has been a driving force in much of my professional and personal life; but this life straddles two worlds because no one else in my family or even my lifelong, closest friends are part of the sport. Because of them, I'm acutely aware of what people outside of the sport are saying. Saratoga residents who've been casual fans over the years are done. Friends around the U.S. texted me and were aghast. They were turned onto the sport because of me and now I feel responsible for the images they can't get out of their heads.

In the past few weeks, driven by this passion, I have communicated directly with various NYRA board members about my concerns and offered solutions and encouragement. This past year, with the breakdowns at last year's Breeders' Cup, on every Triple Crown Day and the country's elite meet suffering from the most awful of repeated tragedies on its biggest days…well, the damage is incalculable.

I come from a science background; and I'm a trial lawyer and general counsel by trade. I get needing to have the evidence to justify corporate decisions. However, what I don't get is being frozen and ill-prepared for such a crisis as what has befallen Saratoga this year given all of the knowledge we already have. Let's be clear, this is an industry-wide problem. We've known for years through the research of Dr. Susan Stover and others that the vast majority of catastrophic breakdowns are the result of pre-existing, micro-factures and injuries. We have observed both historical and recent patterns that breakdowns routinely occur after dirt tracks are sealed. We know rain-sodden turf tracks become uneven, slippery, and/or unsafe, particularly on the turns. We already have the data that dirt tracks are significantly more dangerous than turf; and that synthetic tracks are safer than turf. We know that biometric and diagnostic technologies can help trainers and veterinarians identify the slightest changes in horses' biomechanics and that having a standing MRI on-site at every racetrack could help veterinarians diagnose earlier and prevent fatal injuries.

The general public may not know all of these details, but it witnesses the consequences of not prioritizing safety in every aspect of the sport. Businesses cannot be so data-driven that they forget the emotions of the day, compartmentalize away the sorrowful humanity of recent events; and fail to implement immediate changes. Sometimes business needs to conduct itself with more heart. The younger, larger generations demand that; and they are the future of this sport.

I do have faith that this generational awareness is something NYRA's CEO appreciates as he regularly invites families from Saratoga's “Backyard” into the paddock to get them closer to these magnificent animals of which we are all stewards. WE ARE STEWARDS, as Jena Antonucci has reminded us this year, and that includes each track operator, racehorse owner, training operation, veterinarian, breeder, handicapper, and fan. A steward is a person who is responsible for the safety and welfare of another; and thus, it is incumbent upon each of us who professes to care for these animals to do everything in our power to ensure their well-being. This means each stakeholder, at every level, needs to adjust its business model.

What can be done now, with the information we have today?

(1) Ensure on-site access to, and immediate utilization of, the biometric and diagnostic technologies at the racetracks.

(2) Replace the dirt. The data we have NOW proves racing on synthetics is the safest. U.S. racing and breeding industry cannot keep justifying breeding for, and racing on, dirt. Hall of Fame trainer Mark Casse zeroed in on that in his recent TDN interview. Every track, including each of the tracks that hosts the Triple Crown races and Breeders' Cup, needs to convert their dirt tracks to synthetic, and HISA needs to consider this as a mandate. These synthetic tracks would also ensure that races that need to come off the turf can transition safely.

(3) Breeders and owners/buyers need to get behind this; and

(4) they absolutely must, regardless of the importance of a race, empower their trainers and veterinarians to scratch horses if they have the slightest bit of concern about a horse's soundness. It is irresponsible, to say the least, to take the opposite approach.

If the sport truly puts its money where its mouth is, then it would put equine welfare first in all things and change. In the end, this sport will either adapt, evolve, or be forced out of existence by a repulsed public.

Amanda Luby, Welbourne Stud

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Op/Ed: Synthetics, Fans, and the Future of Racing

It's been another devastating month for horse racing. Even the most hardened racetrackers needed a few minutes to gather themselves when Maple Leaf Mel, steps away from a first Grade I, broke down in the Test at Saratoga on the Whitney undercard. It was a similar story on Saturday when the unbeaten New York Thunder, seemingly on his way to a spectacular victory in the GI H. Allen Jerkens, went down in mid-stretch and, in front of a crowd of 48,292, was humanely euthanized. It was the second fatality on the card, after Nobel (Ire) was put down following the day's fifth race.

Indeed, the numbers at Saratoga this meet are harrowing. New York Thunder was the eighth racing fatality. At least another four have died during morning training at Saratoga, bringing the total to 12. All 12 were trained by different trainers, including some of racing's most respected names–Christophe Clement, Graham Motion, Brendan Walsh and Kenny McPeek, among them.

Racing, it seems, just limps from one tragedy to the next.

It didn't, and doesn't, have to be like this. We've known for nearly 15 years how to reduce catastrophic breakdowns by 50% or more: synthetic tracks. I know these numbers have appeared in the TDN in recent months, but they bear repeating. According to The Jockey Club's Equine Injury database, from 2009 through 2022, there were 6,036 fatal injuries from 3,242,505 starts on dirt during the course of racing in North America.

That's a rate of 1.86 per start. (These numbers don't include fatalities that occur during morning training.)

On synthetics, there were 534 fatal injuries from 482,169 starts, a rate of 1.11. That's a 68% difference. Put another way, had dirt tracks matched the safety of synthetic tracks during that stretch, there would have been 2,437 fewer fatalities.

Despite great progress being made in California in recent years, the last two years have been even more striking. In 2021, the dirt rate (1.51) was more than twice the synthetic rate (0.73). In 2022, it was more than three times (1.44 vs. 0.41). At Gulfstream last year, there were eight fatalities from 5,886 starts on dirt, a pretty respectable 1.36. But on its synthetic track? One fatality from 7,085 starts, or a rate of just 0.14.

These stats show not just how much safer synthetic tracks are, but also illustrate why those who blame permissive medication or breeding trends are wrong. You simply wouldn't see this stark a difference between surfaces if those were the driving factors in racing fatalities.

As sad as it is, if racing continues this business-as-usual approach to racing surfaces, it's not hard to envision how all this ends: the end of the sport in all but a few parts of the country.

Most anyone could sketch the outline: the drumbeat from animal rights groups and unsympathetic media coverage gets loud enough to convince politicians to embrace either ballot referendums or the pulling of slot subsidies. The former, as it did with greyhound racing–now illegal in at least 42 states–kills horse racing jurisdictionally. The latter upends the sport's economics, depleting purse accounts and turning racing truly into the Sport of Kings, with small stables simply unable to justify the investment. Crop size, down from 40,000 in 1990 to roughly 17,000 last year, plummets further. Small breeding and stallion operations falter, with only the largest farms able to absorb the blow. Racing ultimately becomes an enterprise based largely around Kentucky and New York tracks. But once-popular tracks in Florida, California and Louisiana shutter. All the while field size dwindles and the betting product becomes less desirable.

This may take a decade or two, but we've been seeing this play out in real time, and if I was approaching 30 and not 50, I'd be very worried about my long-term prospects in the business.

Which brings us to racing's ability to attract people to it, be they horseplayers or owners or workers.

Every person reading this, and every fan and existing handicapper, myself included, has consciously or not decided that a certain level of catastrophic breakdowns isn't a disqualifying factor to our involvement in the sport. We recognize it is tragic and we mourn, but at the end of the day we conclude that our love of the sport and the animals themselves trumps that loss. But some in racing seem oblivious to the fact that there are many others who don't come to that conclusion; who have heard about the breakdowns at Santa Anita or Churchill or Saratoga and decided to do something else with their Saturday afternoons that doesn't potentially involve the death of an animal. They go to the mall, they go to the casino, they spend their disposable income elsewhere. The results of this are fewer people at the track or watching from home; fewer potential handicappers; fewer potential owners; fewer potential fans; fewer potential employees. And because there's no way to measure this, it's easy to pretend it's not happening, that jackpot wagers and bad advice from pundits and, yes, CAW wagering, are racing's biggest problems.

But talk to your friends and family outside of racing. Ask about their impressions. It's a pretty safe bet that animal welfare will be the first thing they bring up, and it's hard to believe that this isn't a huge impediment in attracting new fans. In recent weeks alone I've had several conversions with non-racing friends about the breakdowns at Churchill this past spring. A friend from NYC made the trip to Saratoga on Whitney Saturday and we spent the day texting about who to bet. After the Test, she texted, “Ah shit. I think that's it for us.” She and her husband left the track before the Whitney. Of course they did. How many people left before the Travers Saturday?

Racing's leaders have never cared to be vocal about this issue. This can't continue. Because if the current Saratoga meet has taught us anything, it's that we don't have a viable sport if we routinely break the hearts of our customers. And we can't attract new fans if people think we're not doing everything we can to protect our equine and human athletes. And right now, we aren't.

Lucas Marquardt is the owner of Thoro-Stride and a former writer for the Thoroughbred Daily News.

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