Not even 24 hours after the Horseracing Integrity and Safety Act (HISA) Authority and the Federal Trade Commission (FTC) alleged links between the sport's recent adverse headlines and the National Horsemen's Benevolent and Protective Association (NHBPA)'s request to delay the May 22 implementation of the Anti-Doping and Medication Control (ADMC) program, the NHBPA fired back with a response that stated the fatalities of seven horses during GI Kentucky Derby week shouldn't be used as a means to make legal arguments in the 2-year-old lawsuit.
“The Horsemen will not exploit the deaths of horses to make a point, because this industry is not going to fix anything moving forward by pointing [fingers],” stated the first line of the NHBPA's May 12 filing.
United States District Court Judge James Wesley Hendrix of the Northern District of Texas (Lubbock Division) had given the NHBPA until the close of the court on Monday, May 15, to file a response to the arguments against delaying the ADMC that were articulated May 11 by the HISA Authority and the FTC defendants.
But because the HISA Authority alleged in its Thursday filing that “recent headlines provide fresh reminders” of “inconsistent regulation,” and because the FTC claimed that the NHBPA has “repeatedly challenged” HISA's efforts to “prevent these kinds of tragedies,” the horsemen plaintiffs wasted little time in trying to address those accusations with a legal response by midday Friday, well ahead of the judge's deadline.
The NHBPA's filing stated that the equine fatalities during Derby week did, in effect, occur under the HISA regulatory framework, citing a May 8 statement released by the HISA Authority that said, “Churchill Downs has been cooperating with HISA since its inception and is in full compliance with our rules and processes.”
The NHBPA also stated that it was the FTC itself, and not any legal efforts by the NHBPA, that kept the ADMC from being in place before the Triple Crown series started.
“It was also the FTC's choice to delay the ADMC from May 1 to May 22. The NHBPA did not delay the ADMC rules until after the Kentucky Derby. The Defendants made that choice because in their view the rules were not ready for implementation in prime time on the most important race of the year,” the NHBPA's filing stated.
“[T]he Authority is still caught in its own logic trap as to the ADMC,” the NHBPA filing stated. “On the one hand, they say, 'few substances that were broadly legal under most states' preexisting regulations are prohibited under the new HISA rules.' On the other hand, they say the ADMC must go into effect immediately or horses will die because current state regulations are insufficient.”
On Mar. 15, 2021, the NHBPA and 12 of its affiliates sued the FTC and HISA Authority personnel, seeking to derail HISA's implementation on constitutional grounds. Judge Hendrix dismissed that suit on March 31, 2022.
The NHBPA plaintiffs appealed, leading to a Fifth Circuit Court reversal on Nov. 18, 2022, that remanded the case back to the Lubbock Division. In the interim, an amended version of HISA was signed into law Dec. 29, 2022. That fix was designed to make HISA compliant with the constitutional defects the Fifth Circuit had identified. On May 6, 2023, Hendrix validated the newer version of HISA as constitutional.
Now the NHBPA is planning another appeal back to the Fifth Circuit, and it wants the ADMC's rollout stopped while that process plays out.
The HISA Authority's May 11 filing explained that it sees the overall issue this way: “Congress, the Executive, and both federal courts [have] come to the same correct conclusion: the Act is now constitutional.”
The NHBPA's May 12 filing countered that claim: “Congress did not 'follow the blueprint'–it made the barest tweak possible to keep the law alive and take a second shot at the courts allowing it to go through.”
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