The biggest story in horse racing last week was the federal conviction of Dr. Seth Fishman after a horse-doping trial that ought to strike fear in the hearts of the racing communities across the world. Seemingly caught red-handed, with his lawyer lamely trying to portray him as a paragon of virtue, Fishman almost certainly is going to prison. It's even more certain that his customer database, in the hands of federal lawyers or investigators and now made public, threatens to turn a really bad scandal about the prevalence of doping into an existential crisis for both Thoroughbred and Standardbred racing.

The second biggest story of the week, at least as far as harness racing goes, was the industry's lack of alarm about Ross Cohen's testimony in Fishman's trial. Cohen was a harness trainer of little note until he pleaded guilty and then helped the feds incriminate Fishman. As part of his plea deal, Cohen told prosecutors and the jury that he fixed harness races at Yonkers Raceway, in New York, one of the most historic and important tracks in the country. Cohen made the allegations under oath and penalty of perjury and it's hard to imagine that federal prosecutors don't have a reasonable belief that he is telling the truth.

The third biggest story of the week, in harness racing, was the decision by Jeff Gural, owner and operator of the New Meadowlands Racetrack (and, full disclosure, a partner of mine in several horses) to allow trainer Adrienne Hall to race horses at the track despite her damning testimony against Fishman. Hall says she bought the illegal drugs Fishman was peddling and used them on a horse, who did so well doped up Hall felt compelled to thank Fishman for the juice. “He dominated. He was a completely different animal. I was so happy,” Hall reportedly told Fishman. Like Cohen, Hall copped a plea. Unlike Cohen, Hall is getting another chance.

And, finally, came publication of the Thoroughbred Daily News' interview with Scott Robinson, now serving time in a federal penitentiary in Florida for selling and distributing misbranded and adulterated drugs. “I sold to everybody,” Robinson now says. “More people should be indicted. Definitely.” But he adds that the feds (and presumably state racing commissions) have not pressed him to divulge the names on his customer list and he isn't inclined to do so. He told Bill Finley at TDN without an apparent shred of irony: “I know my career is over, but there are people out there who still work in racing and their livelihoods are at stake.”

These are stories about cheating and doping and bad medicine that are vitally important today and likely to be important for years to come. They raise questions and concerns of racing integrity at a time when the future of the Horseracing Integrity and Safety Act hangs in the balance. A federal judge is likely to rule soon on a request for an injunction against the federal legislation, a challenge brought by a few rogue horsemen's associations, including the United States Trotting Association, the increasingly-divisive trade group that wants to scuttle HISA even though harness racing is not covered by the limbo-ed new law.

There are, thankfully, still enough independent media voices within the world of Thoroughbred racing (including The Paulick Report, of course) to cover these stories and to shed light on the problems the industry faces. The same cannot be said of coverage of harness racing. There are only a few outlets that offer anything resembling independent news coverage and virtually none of that coverage is investigative. Some of this is a matter of practicality. There simply aren't enough legitimate journalists who are both interested in and capable of covering the sport. And some of it is a matter of policy. Few want to pay someone to ask tough questions.

So we get what we've gotten over the past few weeks. Belated pool coverage of Fishman's doping trial (coverage which, I should say, was good) and virtually no public mention of Ross Cohen's role in the case. “I paid drivers for somebody to hold their horses back in races,” Cohen reportedly testified. Which drivers? He was not asked and did not say. The New York track is owned by MGM Resorts and presided over, at least from the horseman's perspective, by Joe Faraldo, who is both the president of the Standardbred Owners Association of New York and chairman of the United States Trotting Association.

Faraldo, you might recall, was linked as an owner at some point with one of the trainers later indicted by the feds. Was Faraldo on a witness list for the Fishman trial? Is he on a witness list for related trials? Has he been approached by federal investigators or defense attorneys to share what he knows about the operation of Yonkers as it relates to the conduct of Fishman and Cohen? We don't know. Is Yonkers or the New York racing commission or Faraldo's horseman's organization investigating the recent allegations? We don't know. Has the USTA ever looked into whether Faraldo's dual roles create conflicts of interest? We don't know.

Brad Maione, a spokesman for the New York State Gaming Commission, was particularly unhelpful. He told me recently: “We cannot confirm or deny whether an investigation is being conducted.” When I asked whether any New York racing licenses had been suspended or revoked as a result of the federal case he responded: “We cannot confirm or deny whether an investigation is being conducted.” When I asked if state regulators were cooperating or had cooperated with the feds during the course of the investigation, he responded: “The commission regularly collaborates with state, federal and local enforcement.”

We certainly can't go to the USTA's website for answers. The USTA is quite capable of promoting stories it wants to share with its readership. Its propaganda campaign against the HISA shows there is plenty of room on that main page for stories about racing integrity. But the Fishman trial? The USTA put up the pool piece after Fishman was convicted. Cohen's allegations against Yonkers drivers? I still have not seen a word of it on the USTA's site. Maybe that's because Faraldo, speaking on behalf of the USTA, keeps embarrassing himself in national publications when given the opportunity to denounce the Fishmans of the world.

The USTA's laughable pro-integrity campaign is based around the bumper-sticker line: “If you see something, say something.” Well, Ross Cohen saw something. And Ross Cohen said something. He said he was part of something illegal at Yonkers. He said it under oath. What's the USTA going to do about that, apart from ignoring that news on its website? Who is going to call for an independent investigation into racing at Yonkers Raceway? The USTA and Hanover Shoe Farms, the sport's largest breeding operation, established a $250,000 matching fund grant in 2020 to “support the work of restoring full integrity of that sport.” Is some of that money going to go into investigating Cohen's allegations? If not, why not?

I asked a USTA director some of these questions last week and the responses I got help explain the ways in which the organization is much closer to being part of the problem than being part of the solution. “In general the USTA does not do investigations,” I was told when I asked about the Cohen case. “We are not a news reporting organization in this manner,” I was told when I asked about reporting Cohen's allegations. Conflicts of interest? “If an issue would become too close to a Director he/she would likely remove themselves from the issue in question,” I was told, a fiduciary standard that I suspect doesn't cut it on Wall Street.

If I were an honest driver at Yonkers I would want my name cleared from the allegations Cohen leveled at the trial. If I were an honest trainer at Yonkers I would want to know more about what Cohen says he did and how he says he did it. As an owner of horses who race at Yonkers I want to know more about the race-fixing schemes. If I were a bettor, I wouldn't bet a dollar more there until I know the scheme that Cohen described ended when he was caught. None of this should be controversial. Either the USTA, New York regulators, and the SBOANY are as dedicated to protecting honest horsemen and horsewomen as they say or they are not. We all are better off knowing the answer to that question sooner rather than later.

Andrew Cohen is a Standardbred owner and breeder and a two-time winner of both the John Hervey Award and the O'Brien Award for commentary on horse racing.

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Hall testified that she administered PEDs to her horses after purchasing them from Fishman. Her membership in the U.S. Trotting Association was revoked shortly thereafter, but a USTA membership is not required for her to race horses in New Jersey.

“We disagree with the USTA decision, and we applaud Ms. Hall for coming forward,” Gural said. “To penalize those who testify for the prosecution will only serve to further the already existing notion that 'saying something will only lead to problems for yourself.'

“It will discourage the type of participation necessary to convict the indicted persons, as Ms. Hall's testimony has helped on this case.

“The lack of action by the USTA during this five-year effort on our part to get rid of the cheats along with their continued opposition to the [Horseracing Integrity and Safety Act] legislation, which, with some changes, is our only hope of keeping the chemists out, is dangerous to harness racing.

“We have received no support from USTA or any of their members in trying to eradicate the drugs and those who use them from racing. The absence of coverage on ustrotting.com of the Fishman trial proceedings is inexcusable.

“We now have access to Seth Fishman's customer database files, which contain the names of hundreds of his clients, including several prominent trainers who hopefully can produce records showing what they purchased and why.”

Read more at NJ Online Gambling.

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The amicus brief contends that HISA amounts to a private club having governmental powers, and thus is unconstitutional.

The six filing states are: Ohio, Alaska, Arkansas, Idaho, Mississippi, and Nebraska.

They join Oklahoma, West Virginia, and Louisiana, along with the United States Trotting Association, several state racing commissions, the Oklahoma Quarter Horse Racing Association, several Native American-owned race tracks, and Hanover Shoe Farms, Inc.

Read more at harnesslink.com.

The post Six New States File Amicus Brief In HISA Unconstitutionality Lawsuit appeared first on Horse Racing News | Paulick Report.

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In a statement made in September 2020, USTA President Russell Williams said, “The constitutional concerns raised by HISA are substantial and pervasive. Those concerns embrace the structure and powers of the regulatory body at the heart of the bill and extend even to the bill's more peripheral provisions.”

On Friday, Williams further elucidated his concerns to the USTA Board in prepared remarks in which he also assured the board that the Association will assume no portion of the cost of district court proceedings.

If allowed to stand, HISA would remove from the states the power to regulate racing medication and safety matters and give them to a private entity, the newly created Horseracing Integrity & Safety Authority (Authority).  HISA is scheduled to go into effect no later than July 1, 2022.  The Federal Trade Commission will oversee a rule-making process that eventually will establish and approve the medication control and racetrack safety programs to be enforced by the Authority.  The new law stipulates that HADA initially will be funded by loans taken out by the Authority, which will then be repaid by fees assessed to the state racing commissions.   No price tag has yet been attached, however, nor has it been determined which segments of the industry will pay for HISA.

The legal action that the USTA will be joining is expected to be filed shortly by the State of Oklahoma and Hanover Shoe Farms.   That follows a similar claim against HISA brought last month by the National Horsemen's Benevolent & Protective Association (NHBPA) and 11 of its affiliated state organizations.   That suit, filed in the Northern District Court of Texas, alleges the law creates a private organization and gives it federal authority, which it claims is unconstitutional.

An attendance and voting summary appear below.  A “yes' vote reflects support for joining the lawsuit, while a “no” designation indicates opposition to doing so.

Present:  C. Antonacci, I. Axelrod, S. Beegle, D. Bianconi, D. Bittle, J. Bluhm, M. Breuer-Bertera, B. Brown, J. Cross, G. Ducharme, Chairman J. Faraldo, M. Ford, J. Frasure, R. Gillock, K. Greenfield, J. Gregory, T. Haight, S. Hedington, J. Hensley, S. Hoovler, J. Ingrassia, M. Kimelman, S. Lilly, Vice Chairman M. Loewe, D. Marean, J. Matarazzo, S. McCoy, C. McErlean, R. Miecuna, Treasurer J. Miller, J. Mossbarger, S. Oldford, J. Pennacchio, J. Reynolds, A. Roberts, R. Roland, J. Roth, J. Settlemoir, D. Siegel, D. Spriggs, M. Sweeney, A. Tetrick, M. Torcello, S. Warren, President R. Williams, J. Zambito

Not Present:  B. Alexander, D. Ater, L. Calderone, C. Callahan, K. Crawford, B. Kenney, C. Leonard, R. Mackinnon, S. O'Toole, S. Peine, T. Powers, R. Schnittker, J. Stratton, G. Wand

Yes:  Axelrod, Bianconi, Beegle, Bittle, Breuer-Bertera, Brown, Cross, Ducharme, Faraldo, Frasure, Gillock, Gregory, Haight, Hedington, Hensley, Hoovler, Ingrassia, Kimelman, Lilly, Loewe, Marean, Matarazzo, McCoy, Miecuna, Miller, Oldford, Pennacchio, Roberts, Roth, Spriggs, Sweeney, Tetrick, Torcello, Williams, Zambito

No:  Antonacci, Bluhm, Ford, McErlean, Roland, Settlemoir, Siegel, Warren

*Two votes from directors who were confirmed to be present on the call but experienced technical difficulties in being heard were added to the final tally.

The post USTA To Join Upcoming Lawsuit Challenging Horseracing Integrity And Safety Act appeared first on Horse Racing News | Paulick Report.

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The horsemen's letter, first published at Harness Racing Update, reads:

The undersigned are encouraging the Standardbred industry about how best to structure the Horseracing Integrity & Safety Act to be inclusive of Harness Racing's unique needs.

We support the Horseracing Integrity and Safety Act recently passed by Congress and signed into law by President Trump.

We know that there are details about funding and other matters that will have to be worked out in good faith between regulators and members of the horse racing community. And we know that the new law is not perfect. But we believe that the new law is a legitimate and important step in the right direction toward universal medication rules for our sport, increased enforcement of drug rules to make the sport more honest, and a greater public acceptance of horse racing as a safe, humane sport.

We need all of these things to protect our sport's future. And we need to work within the broader racing community to make the law work for us, especially since it requires regulators to consider the “unique characteristics” of each breed. We believe that representatives of the Standardbred industry should work with those who support the new law, and who will be enforcing it, to help establish the rules and policies that will likely govern our sport for years to come.

Signed,

Breeders

Adam Bowden (Diamond Creek); Bruce Trogden (Emerald Highlands); Steve Jones (Cameo Hills); George Segal (Brittany); Mike Gulotta (Deo Volente); Senena & Jeff Esty (Spring Haven); Frank Antonacci (Lindy); Bob Brady (Kentuckiana); Al & Michelle Crawford (Crawford Farms); Ken Jackson (Kentuckiana); Mario Zuanetti (Atlantic Trot); Massimo Bianchi; Margareta W. Kleberg (Menhammer St); Tom Hill; Art Zubrod (Brittany); Jim & Gibson Wilhite; Knutsson Trotting; Tristan Sjoberg; Bernie Noren; Al Libfeld; Sam Goldband; Charles & Julie Nash; Jon Wiesman; Pond A Acres; Andrew Cohen (Bays Stable); Leah Cheverie; David Heffering (Tara Hills); Frank Lomangino; Johan Arneng (Brixton Medical); John Donato; Ernny Gerbaulet; Richard Gutnick; Peter Martinson; Robert Mondillo; Victor Zehr; Ed Telle; James Daut; Robert Hechoff; Richard Arnold (Willow Oak); John Schmucker (Black Creek); Dan Baer (South Mountain); John Lengacher; John Bootsman (Boko); Dan Lengacher; Duncan Taylor (Taylor Made); Jeff Ruch (Pinestone); Anders Strom (Courant); Maumee River; Jeff Gural (Allerage); All American Harnessbreds; Mike Andrew; Maurizio & Marina Biasuzzi; John Carver; Joe Mendelson; Jim Glass (Walco); Stephanie Rothaug (Rails End); Jim Avritt Sr (Meadow Creek); Stewart Goldberg (Mini Sinks); Randy & Kim Haines (Cool Winds); Steve & Cindy Stewart (Hunterton); Elmer Miller; Lorne Polger (Polger Holdings)

Trainers and Drivers

Ron Burke; Brian Brown; Virgil Morgan Jr.; Jimmy Takter (Hall Of Fame); Ben Wallace; Casie Coleman; Nifty Norman; Jeff Fout; Ed Lohmeyer; Linda Toscano (Hall Of Fame); Paula Wellwood; Mike Keeling; Jim Campbell; Carter Pinske; Tony Alagna; Donna Lee Ozment; Joe Holloway (Hall Of Fame); Per Engblom; Tom Cancelliere; Enos Weaver; Donald Dancer; Blair Burgess (Hall Of Fame); Brad Mcninch; Kevin Mcdermott; Jean Wellwood; Bob Stewart; Murray Brethour; Jim Arledge; Greg Peck; Kelly O'Donnell; Tim Lane; Scott Mogan; Brett Bittle; Scott Zeron

Owners

Mark Weaver; Howard Taylor; Herb Liverman; John Fodera; Murray Brown; Brad Grant; Fred Hertrick III; Carl Howard; Martin Sternberg; Bo Lofvander; Doug Millard; Ernie Gaskin; Robert Burgess; Fred Hudson; Bryan Montgomery (Regency Ins.); Frank Chick; Myron & Stephanie Bell (Riverview); Harvey Nagner (Radio Racing); Marc Guilfoil (Ky. Racing Comm.); Richard Young; Martti Ala Seppala; Harvey Fried; Robert Lindstrom; Perry Soderberg; Tommy B Anderson; Jack Remey ( P. Judge); Lynn Jones; Randy Manges; Bob Marks; Joyce & Richard Mcclelland; Bill Vit (Cool Cat); Craig Henderson; Ray Baynes; Gary Corona; Allan Schott; Howard Perlmutter; Gorden Banks; Dan Kazmaier (P. Judge); Bob & Jeanne Stewart; Mark Hanover; Ed Biddle; Kimmo Kempi; Nick Salvi; Mike & Don Robinson; Joe Sbrocco; Virginia Berkner; Steven Wienick; Martha Frank; Robert Leblanc; John Balzer; Geoffrey Dubrowsky; Bill Reepmayer; Frank Cannon; Jason Settlemoir

Vets

Dr. Patty Hogan; Dr. Terry Ruch; Dr. Doug Hutchins; Dr. John Park; Dr. Lynda Rhodes Stewart; Dr. Nathaniel Newton; Dr. Ted Mazorisi

The post Harness Horsemen Sign Letter Support Horseracing Integrity & Safety Act appeared first on Horse Racing News | Paulick Report.

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It came as no surprise when The Jockey Club's Stud Book cap on foals born in 2020 or later was formally taken to the courts on Tuesday. The only question was who would be the one to throw the gauntlet down, and when they'd do it.

Now that the bell has officially been rung, there's potentially a lot more on the line than just how many mares a stallion can breed in a year. The very nature of what a Thoroughbred is, and how one is made, could hang in the balance.

In the complaint filed by Spendthrift Farm, Ashford Stud, and Three Chimneys on Tuesday, one of the demands from the plaintiffs reads as follows:

“For an injunction requiring the [Kentucky Horse Racing Commission], through its Chairman and Executive Director, to permit Thoroughbreds to race in Kentucky regardless of their inclusion in the Jockey Club Registry.”

Taken at face value, this reads like a simple request to allow stud farms to continue breeding as many mares to its stallions as they want, beyond the 140-mare cap. For all we know, that might be the only thing the plaintiffs had in mind when the document was written up.

However, the open-ended nature of its language could potentially prop open the door to sidestep other longstanding rules that define what a Thoroughbred is anywhere in the world – namely, that they must be conceived on a live cover.

A horse of Thoroughbred blood conceived via artificial insemination, embryo transfer, cloning, or any other means besides the only one that's allowed, is not a true “Thoroughbred” by The Jockey Club's definition, and it would not be included in the registry. This is one of the building-block rules of the breed.

If Thoroughbreds are allowed to race in Kentucky regardless of their inclusion in the Jockey Club registry, the lock to Pandora's Box would seemingly be left unfastened for whatever interpretation one would want to use.

The live cover issue is one that's being debated and litigated on a global scale, and blowing open the American Stud Book would be a huge precedent with potentially vast ripple effects. The plaintiffs are aware of that global balance, noting in their filing that foals conceived after a stallion's 140^th mating of the season would not be eligible for registration in any reputable jurisdiction in the world once it's deemed unable to be registered domestically.

This is a court case that could change the process of Thoroughbred breeding worldwide. It's also an incredible opportunity to reinforce the legal standing of the Stud Book cap and, in turn, the very definition of a Thoroughbred, assuming The Jockey Club and its fellow defendants prevail.

If this conflict was inevitable, which it was as soon as the cap was announced, it's best to get it over with.

Speaking with some prominent figures in Kentucky's stallion industry, I wasn't alone in this thought process.

“I think everybody thought it would come to some kind of challenge, be it stallion farms or an individual breeder who couldn't breed to the horse they wanted to because he was over 140,” said John G. Sikura of Hill 'n' Dale Farms. “While it's frustrating and takes a long time, I think the legal challenge is a good one to answer the question. When something's legally held, whether you like it or don't like it, the future is defined. It's better than being muddled or uncertain.”

The question of whose job it is to regulate Thoroughbred breeding, The Jockey Club or the individual state commissions, is one of the core issues of the lawsuit. Settling the matter in the courts would not only firm up the legal standing of the Stud Book cap, a win for The Jockey Club would also better establish its authority to set and enforce rules in an industry where so many other guidelines vary from state to state.

There are enough drums beating for a central national authority in horse racing, so I won't add my mallet to it here, but it's hard to argue that the industry would be helped in any way by a weakened Jockey Club – arguably the closest thing we have to that central office.

Duncan Taylor of Taylor Made Farm said he understood the reasoning behind the suit, specifically noting the cap's restriction on the idea of free-market capitalism, but he also noted that hardly any industry goes completely unregulated. Any form of regulation is ultimately a man-made restriction to the marketplace, and if man-made rules are created in any venue, they tend to be challenged.

Even if the lawsuit's demand language did explicitly state that it only wanted to overturn the Stud Book cap, Taylor said a defeat of that magnitude in court could make it easier to pull apart other pillars of The Jockey Club's rulebook.

“I would say that I could file today and say we should have artificial insemination, and if their case wins, then the AI case ought to definitely win,” he said.

This case could be seen as a potentially helpful one for proponents of the cap, immunizing it from future legal challenges, but it's only helpful if The Jockey Club and the other defendants win. Otherwise, there will be a lot of open-ended questions suddenly needing answers.

If you're looking for past performance, there is a bit of precedence in this matter, and it looks good for the cap staying in place.

When the United States Trotting Association worked toward instituting its own stud book cap for Standardbreds in the mid-2000s, and ultimately implemented it in 2009 (Spoiler alert: Everything was fine), there were several legal challenges that the measure had to overcome from parties claiming it violated antitrust laws.

I wanted to get some perspective on what to expect from the legal challenges, so I spoke with USTA president Russell Williams, who was a board member at the time the Standardbred rule was implemented. He was one of the cap's most vocal supporters, despite running top breeding operation Hanover Shoe Farms, which took one of the biggest hits from the new rule.

Williams, himself a lawyer, said the rule was created with the expectation that it would have to prove itself out in court, so steps were taken ahead of time to make sure it would stand up to the barrage. An intensive study by the University of Kentucky's Dr. Gus Cothran was commissioned to establish scientifically that there was a looming issue with genetic diversity. Then, the language was given the green light by one of the country's leading law firms specializing in antitrust.

Williams said he expected The Jockey Club would come out on top in the end, even if the case and the argument aren't quite apples-to-apples with what the USTA faced. The burden of proof in the scientific backing will rest harder with The Jockey Club, given it hasn't publicly produced a similar go-to study to hold up against the claims that the science isn't there, as accused by the plaintiffs.

With that being said, the diminishing variety in the Thoroughbred gene pool doesn't take a PhD to deduce in the annual Report of Mares Bred.

The foal crop is at its lowest point in decades, fewer stallions are standing at stud, and the number of stallions covering 140-plus mares per season has exploded since the turn of the century. These trends have been a part of The Jockey Club's platform for the cap since it first went public with a proposed rule change in the summer of 2019.

Putting names behind the numbers further shows just how compounded the top of the Thoroughbred market could become if the trend continues. Of the 42 stallions that covered 141 or more mares last year, 15 were by one of five sires: Curlin, Into Mischief, Uncle Mo, Speightstown, and Tapit. Of those five stallions, all but Tapit were also in the group themselves.

Though the odds appear to tilt toward the defendants, one can't expect this will be resolved quickly, or even necessarily in the defendants' favor. If it goes before a jury, as the plaintiffs requested, juries have done crazier things. Either way, this won't be settled as quickly and neatly as a one-hour episode of Law and Order.

Meanwhile, the first foals affected by the Stud Book cap will go through the sales ring as yearlings this summer and fall. It would be nice for everyone involved if they knew exactly what kind of blue sky they were buying into at that point in the calendar, but we can only venture a guess as to what might happen in the months between then and now.

If all goes as expected, I figure the breed will emerge from this lawsuit better off for it. Now, let's just see if it all goes as expected.

The post Making Claims: Let The Courts Strengthen What It Means To Be A Thoroughbred appeared first on Horse Racing News | Paulick Report.

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In sum, all of these efforts have failed.  Focusing on harness racing, my true passion, anyone who does not believe that the industry is experiencing rampant cheating is living in a dream world. Cheating occurs at a variety of levels, but I will focus on cheating that involves medication, which affects all facets of the business.

HISA has been passed by the House of Representatives in a unanimous (voice) vote, and it is extremely likely it will have a similar outcome in the Senate. No matter where we as harness racing supporters stand on the legislation, it is time to accept it, look at its potential benefits, and work hard to get as much representation as possible and as loud a voice as possible for our Standardbreds.  Recent letters by Russell Williams and Joe Faraldo, the USTA's president and chairman, respectively, were not very cordial with regard to their Thoroughbred counterparts. They threw some pretty sharp daggers, perhaps some deserved, but for sure not all. With regard to comments about coming to the table, I know first-hand that at least on one occasion, it was the USTA that put forth ultimatums in order to even sit down.

Nevertheless, all of that is water under the bridge at this point, as are the monies spent by the USTA to fight the bill. In business, we call these sunk costs and fretting whether or not it made sense to spend the money will bear no fruit. What makes sense is to look at life under the legislation and to extend an olive branch to its supporters and try to reap the benefits of the bill, even though it might fall short of a utopian situation for harness racing.

I personally know a number of the key figures involved.  I have nothing but respect for the skills and intellect of Joe Faraldo and Russell Williams. I also know that Jim Gagliano (president and chief operating officer of The Jockey Club) is a very reasonable man.  And while I don't personally know Meadowlands racetrack owner Jeff Gural, I do believe that he is genuinely interested in bringing better integrity to our game.  I also know with 100% certainty that all four of these men have this in common – so things start with much common ground. And while the USTA clearly lost the “war” over the legislation, I do not believe that the supporters have any inclination to stick it to the USTA. In fact, I believe quite the contrary; they would support different rules for breeds that have profound differences in how they race. But to get to that point, the USTA must make the proper overtures to work together now within the confines of the legislation.

Medication (and other abuse-related) reform is badly needed in our game. Cheating abounds in harness racing, a great deal of that falling within the spectrum of medication abuse. Most state racing commissions have done a terrible job in weeding out cheaters and horse abusers. I base that on what I have seen with my own eyes and countless written accounts of cheaters being allowed to continue to participate.  And the failure is not just at the level of the commissions, but also at the track level, where known paper trainers or “beards” abound and other violations take place, where asserting private property rights, even with due process, could be exercised to exorcise the problems.  But most tracks choose to look the other way.  This goes on at nearly every harness track in the country.

Therefore, I urge Russell Williams and Joe Faraldo to reconsider their position and lead the membership in a pivoted direction given likely enactment of this legislation. There is still time to sit down with the key supporters of the bill, before or after its passage and influence its direction with regard to Standardbred racing. I further ask that they put aside any personal issues with others that may be on the opposite side of this debate and view this with the great practicality and professionalism that I know both are capable of, no matter how they might perceive various supporters to behave – in other words, take the highest road. I encourage them to rethink the cost-benefit of any further spending in opposition to the bill before or after its inevitable passage and embrace the possible positive outcomes the bill could mean for harness racing. Furthermore, I encourage them to do their best to exert whatever influence they might have so that our Standardbreds can get the most favorable treatment possible if our breed ever becomes subject to this legislation.

David Siegel is a USTA board member from District 3. He is a Standardbred horse owner and a professional harness driver with over 500 wins. He is also the president of TrackMaster. TrackMaster is a longstanding partner of the USTA for the development and distribution of electronic harness racing handicapping information, automated morning lines, and horse ratings used for race classification. TrackMaster is a wholly-owned subsidiary of Equibase Company. Equibase Company is a partnership of The Jockey Club and the TRA (Thoroughbred Racing Associations of North America), whose diverse membership includes ownership entities of both thoroughbred and harness tracks. The views he expressed here are his own.

The post Horseracing Integrity And Safety Act: A Standardbred Supporter’s Practical View appeared first on Horse Racing News | Paulick Report.

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In a recent press release, the USTA touts a secret “white paper” purportedly concluding that the HISA is “possibly” unconstitutional. Of course, no one else has set eyes on this white paper. But it is hardly surprising that — after months of USTA opposition to any bill like HISA — the USTA's hired-gun law firm would come up with the USTA's preordained conclusion.

The USTA's unwillingness to release its legal analysis is telling: In reality, HISA is carefully crafted and constitutionally sound. The bill has been rigorously vetted. Many attorneys from different sectors (including Supreme Court and constitutional experts from Akin Gump Strauss Hauer and Feld LLP) have thought through the very issues the USTA raises, because we anticipated that those who oppose the bill for other reasons would lob this type of unfounded attack. In the face of decades of precedent supporting the proposed statutory scheme, none of the USTA's four constitutional arguments withstands scrutiny.

1. HISA does not violate the non-delegation doctrine. The USTA is correct, of course, that there are important limits on Congress' ability to “grant regulatory authority to private entities.” But that doctrine does not bar private entities from “help[ing] a government agency make its regulatory decisions, for '[t]he Constitution has never been regarded as denying to the Congress the necessary resources of flexibility and practicality' that such schemes facilitate.” Ass'n of Am. Railroads v. United States Dep't of Transp., 721 F.3d 666, 671 (D.C. Cir. 2013) (quoting Pan. Ref. Co. v. Ryan, 293 U.S. 388, 421 (1935)), vacated on other grounds, 575 U.S. 43 (2015). As long as a government agency has discretion to approve, disapprove, or modify a private party's proposed regulations, longstanding Supreme Court precedent makes clear that Congress is free to formalize the party's role in the regulatory process.

The Horseracing Integrity and Safety Authority (Authority) designated in HISA is subject to the oversight and approval of the Federal Trade Commission (FTC) in at least two critical respects. On the front end, the Authority must file any proposed rules (or rule changes) with the FTC, which must subject the rules to proper notice-and-comment and agency-approval procedures. Without the FTC's approval, the rules cannot take effect and have no binding legal force. On the back end, all sanctions imposed by the Authority “shall be subject to review by an administrative law judge” appointed by the FTC, subject to yet further review by the commissioners. Far from the “exalted brooding” the USTA criticizes, these statutorily mandated constraints ensure the FTC's ultimate responsibility for any meaningful action carried out under the HISA.

This relationship mirrors the enduring and effective model adopted by the Financial Industry Regulatory Authority (FINRA) and the Securities and Exchange Commission (SEC). FINRA is a private, independent, nonprofit, self-regulatory organization that participates in the regulation of the securities brokerage industry, subject to SEC oversight. As with the proposed Authority-FTC scheme, FINRA rules must be approved by the SEC and FINRA's disciplinary actions are subject to SEC review. Courts considering challenges to FINRA on the non-delegation grounds that the USTA's press release trumpets consistently have held that the contentions have “no merit.”

Grasping at straws, the USTA warns about (undefined) “law-enforcement powers” that “would be free from FTC oversight.” As an initial matter, the predicate for USTA's warning is false: Any powers carried out by the Authority, whether analogized to “law-enforcement powers” or not, would be cabined by specific rules the FTC adopts and specific review the FTC conducts over any resulting sanctions. In any event, the Authority's investigatory powers also parallel those that FINRA routinely carries out with respect to securities brokers and firms. In fact, other statutory schemes — such as Congress' express grant of broad investigatory authority to the U.S. Anti-Doping Agency (USADA), a private entity recognized as the official anti-doping agency for Olympic sports — impose far fewer constraints on self-regulatory organizations than the FINRA-SEC and Authority-FTC models impose.

2. Hedging its non-delegation challenge, the USTA alleges that the HISA may run afoul of the Appointments Clause and Article II removal restrictions. But the USTA does not acknowledge, let alone resolve, the tension between its two arguments: The non-delegation theory rests on the notion that HISA delegates regulatory authority to a private entity. Meanwhile, the Appointments Clause and removability concerns apply only to federal (i.e., non-private) entities. The fact that the pre-existing Authority designated by HISA is private — as USTA emphasizes to support its non-delegation challenge — dooms any Appointments Clause or removability challenge.
3. USTA's due process theory fares no better. Ignoring the exceedingly difficult standard for bringing a successful claim under the Due Process Clause, the press release vaguely cautions against “economically self-interested private actors.” But the Authority's only interest is improving the integrity and safety of horse racing. The “capture” theory that the USTA creates out of whole cloth lacks any basis. As the USTA recognizes, the majority of the Authority's board members are “independent” (i.e., from outside the equine industry). To be sure, the remaining board members will have industry experience and engagement. But it is difficult to understand how that statutory recognition of the value of informed voices constitutes a deprivation of due process. What's more, with respect to that minority group of board members, HISA expressly provides for equal representation among each of the six equine constituencies (trainers, owners and breeders, tracks, veterinarians, state racing commissions, and jockeys). And the committee tasked with nominating eligible candidates for board and standing-committee positions is made up of entirely non-industry members. The HISA further imposes broad conflicts-of-interest requirements to ensure that all board members and independent standing committee members (and their employees and family members) are free of all equine conflicts of interest.

All those safeguards mean the Authority's board will be even more constrained from self-dealing than the leadership of other self-regulatory organizations, including FINRA. Regardless, established precedent confirms what common sense indicates: Even when a private entity is engaged in the regulatory process, agency authority and surveillance serve as adequate guards against any promotion of self-interest. See, e.g., Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 399 (1940). The FTC's ability to overrule the Authority's proposed rules and sanctions ensures that neither the Authority nor the individuals making up its board can “use their position for their own advantage — to the disadvantage of their fellow citizens.” Pittston Co. v. United States, 368 F.3d 385, 398 (4th Cir. 2004).

4. Finally, no part of HISA commands states to do anything to which they don't freely agree. Instead of requiring the states to undertake any particular duties, the bill presents them with genuine choices: They can work with the Authority to effect the anti-doping program or they can relieve themselves of enforcement activity, with the Authority implementing the horse racing anti-doping and medication control program in the state. Further, the weakness in the USTA's anti-commandeering argument is laid bare by its reliance on an incorrect quotation from the bill. Rather than providing that “State law enforcement authorities shall cooperate and share information with the Authority,” the bill directs the Authority “to cooperate and share information” with state and federal law enforcement authorities whenever its investigation into violations of the horse racing anti-doping and medication control program uncovers a violation of state or federal law.

For all its grandstanding, the USTA's bottom line (apparently quoting its attorneys) is underwhelming to say the least: The “enactment would lead to extensive litigation and the possible invalidation of the statute.” Anyone can sue over anything — the mere existence of litigation says nothing about its likelihood of success. These are the facts: The HISA is ground firmly in 70 years of precedent and the Authority-FTC relationship closely parallels the long-running FINRA-SEC model. However, anything is “possible.” It is possible to place a winning trifecta bet six races in a row. But it is not likely. If Congress rejected every bill that could be litigated and “possibly” invalidated, it would never enact a new law.

The HISA is on solid constitutional footing.

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One of the loudest voices in opposition to the federal legislation is the United States Trotting Association, led by its president, Russell Williams, who has been crusading for years in opposition to proposed federal reforms. He seems to believe that the bill poses an existential threat to harness racing. He seems to believe that state racing commissions are worth fixing. He seems to believe that harness racing has been shunned through the process by which the legislation has evolved. And Williams is not alone. Other members of the harness racing family seem to have swallowed what Williams is serving and also loudly oppose the legislation.

To them, I say this: don't follow the USTA and Williams over the cliff. There is too much at stake. The existential threat to harness racing is not this legislation. It is not the arrival of federal regulatory power or tweaks to Lasix rules. The existential threat to harness racing instead is the USTA's opposition to this legislation. It makes harness racing a laughing stock in the broader world of racing, gives the legislators we are begging for purse subsidies a reason to deny them, and animal rights activists new causes of action to imperil racing. I believe Williams is sincere. I also believe he is dead wrong. You can be both.

And to the broader world of horse racing, and especially to lawmakers in Washington and state houses across the country, I say this: The USTA doesn't speak for all in harness racing. There are many industry leaders – owners and breeders and trainers and drivers and administrators – who see this imperfect legislation as a timely opportunity to send a message to legislators and the public that harness racing recognizes its integrity and safety problems and is willing to do something bold to solve them. Their voices deserve to be heard, too, as this debate moves toward a conclusion. I hope people of goodwill are listening. You'll be hearing more from us in the coming days.

I think Williams and the USTA are wrong on the merits of the bill but at least I understand the specific arguments they are making against it. What I don't understand is the USTA's refusal  to work with other industry stakeholders to improve the legislation now likely to pass. The USTA's decision to act as an outlier, no matter how principled Williams thinks it is, is a catastrophic mistake that exposes harness racing, and it alone, to punishment by legislators and activists. The USTA looks at the legislation only as opposing counsel would. But there was never an industry-wide discussion, or vote, on whether that's what the rest of us want.

Here's an example of what I mean. The current version of the legislation, introduced a few weeks ago in the Senate, includes several meaningful concessions (on Lasix, for example)  that ought to have made the bill more palatable to the USTA. It didn't. Williams last week offered the same old, tired objections to the new and improved bill. Invited to compromise, to work to make the legislation better, Williams instead doubled-down. Faced with the same choice, on the other hand, what did the Jockey Club do? It wanted a full ban on Lasix, right? It didn't get that. Yet It accepted a much more limited ban. It's at the table, negotiating, while the USTA is threatening a costly lawsuit. Whose members are best being served?

Let's take some of Williams' points one by one. He says that state racing commissions are “accountable” to elected officials and that the new legislation would create a federal regulatory system, through the Federal Trade Commission, that would be “passive and symbolic at most.” Great talking points – sure to resonate with horsemen skeptical of federal power. But the opposite is true. Surely if you have read this far you know from your own experience that the lack of accountability and diligence among racing commissions is one of the major reasons why racing integrity is such a problem in our sport.

Pick a state, any state with horse racing, and you can argue the regulatory scheme there is broken by perennial cronyism and a level of bureaucratic inertia and incompetence that would be shocking if it weren't so ordinary. That's why there is still so much cheating and so little done to stop it. Does anyone deny that? When Williams says that racing commission members are basing their decisions on their “immense learning and experience” he's asking us all to stop believing what we are seeing with our own eyes and hearing with our own ears. And he's leading the industry toward a path where it will become a club sport.

Does anyone think that the USTA has some sort of magic plan to fix what horse racing has failed to fix in racing commissions for half a century? If so, I haven't seen it. Look at New York, for example. Where is the “immense learning and expertise” among state regulators there? The FTC, meanwhile, which Williams calls “passive and symbolic,” has been around for more than 100 years and regularly presses to enforce criminal and civil penalties. What's “'passive and symbolic” are the failed racing commissions the USTA inexplicably wants to rescue.

Williams complains that the bill “makes a couple of head fakes in the direction of breed-specific rules, but it lacks the mandatory language necessary to make sure the Authority makes such rules where appropriate.” Here's what the bill now actually says: “Consideration of other breeds. — In developing the horseracing anti-doping and medication control program with respect to a breed of horse that is made subject to this Act by election of a State racing commission or the breed governing organization for such horse under section 5(k), the Authority shall consider the unique characteristics of such breed.” (Emphasis added).

Conjuring up old grudges with the RMTC, which only he cares about, Williams next says that those who support the new rules on Lasix now in the legislation are buying into a “hoax” cobbled together by our friends in the Thoroughbred industry. But successful Lasix-free racing in the rest of the world is no hoax. Nor is it universally agreed that Lasix is not a “performance enhancing” drug or that it doesn't mask blood doping. Nor is it a “public distraction,” as Williams says. There are plenty of reasonable people who believe that administering a diuretic to a horse before the race itself raises concerns about animal cruelty.

Under the new version of the bill, in one of its most significant recent compromises in the USTA's favor, states could request a three-year delay in prohibiting Lasix within 48 hours of a race except on 2-year-olds and in stakes races. That three-year period would be used to further study the effect of Lasix on horses and, perhaps, to put to rest the contentious medical and scientific debate on the topic. The federal authority created by the new law would then have the opportunity to modify the 48-hour Lasix rule. Does that sound unreasonable to you? Enough to spend millions litigating over?

Williams complains about the funding mechanism in the bill, arguing that the harness industry will be disproportionately and unfairly taxed compared with our Thoroughbred cousins. He keeps harping on a figure he has made up – $13 million, by multiplying a fee of $45 for every race – and suggesting that this will be the annual testing cost to harness racing for the rest of time. But there is nothing in the text of the law that mandates this disparity or that cost. And certainly nothing that guarantees the Thoroughbred industry will benefit to our detriment.

My sense instead, from talking to many people involved in this debate, is that there are discussions to use a sort of scale that would distribute drug testing costs more equally across breeds in the new legislation. Why the USTA is not involved in these discussions, or no longer involved, is a question the association ought to answer before it resumes its propaganda offensive against the Integrity Act. It's certainly a question the USTA ought to answer for itself before it commits millions to lawyers to try to overturn a well-meant law.

On the topic of fees, by the way, in the last 15 years I have yet to meet another owner who has said that he or she wouldn't be willing to spend a little more to try to make the sport more fair. Owners, like everyone else in the industry, need to put their money where their mouths are for the greater good. Here's an idea. Instead of spending $425,000 on lawyers to prepare for an attack on the constitutionality of the proposed law (which the association did in April even as it was cutting salaries) the USTA could have instead, for starters, created a fund to help defray the costs of the drug testing under the federal regime.

Williams next argues that USADA's program is not set up to perform the broad drug testing the new law would require. But there is nothing in the new bill that limits the ability of the federal drug testers to contract with other labs across the country, providing they are accredited, to perform the necessary testing. And then Williams complains again about the USTA losing its voice in a process that will directly impact harness racing. He's complaining here about a problem he himself has created. Our voices would be heard if not for the USTA.

The USTA has been invited to have a voice in this legislation, which now includes a provision that makes it clear that the authority established by the law won't be dominated by the leaders of any one breed. Standardbreds aren't specifically included in the bill now because of the USTA's relentless opposition to it. Fortunately, however, there is an opt-in provision in the law that makes it easy for the USTA to join the coalition of racing entities willing to work within the framework of the legislation once it is passed. The door is open, in other words.

Having chosen to oppose the bill, Williams now laments the fact that harness racing won't be able to control its own destiny if it passes. While the USTA prepares for litigation, meanwhile, I am told that members of the Quarter Horse racing community already have met, or will meet, to coordinate how they plan to “opt in” to the law. They surely aren't thrilled with everything in the law. They, like the harness industry, are not explicitly included in the current bill. Yet they are coming to the table, working within the framework of the bill, which by the way will only further isolate the USTA and make harness racing a rich political and economic target.

Take New Jersey, for example, Representatives of the harness industry are now lobbying legislators to restore millions of dollars in crucial funding that helps fuel racing's economic engine in the Garden State. It is a particularly tough sell these days with the state's budget overwhelmed by the coronavirus. The USTA's choice to oppose the new Integrity Act, and to prepare to litigate over it, gives an easy out to any state legislator who is on the fence about voting to help harness racing: “Oh, you don't support the wildly popular, bipartisan congressional effort to make your sport more safe and fair? Why should I give you a dime?”

None of this is to say that the Horseracing Integrity and Safety Act is perfect. It' isn't. It does raise serious questions that ought to be answered sooner rather than later. But no legislation is perfect. Laws always include compromises between and among competing factions. This law will not do all it must do to rid the sport of cheaters and protect the horses we love. But the federal bill represents meaningful change. It will bring more uniformity to racing. It will upset the failed old system of state racing commissions. It will make it harder for cheaters to prosper. It will make it easier for those who endanger our horses to be caught.

There are many prominent voices in harness racing who want the USTA, at a minimum, to work alongside all the other stakeholders to try to make this legislation stronger and more fair. That this isn't happening, right now, before the legislation passes, is a crying shame but no great surprise. Some of the same folks who helped make harness racing vulnerable to questions of integrity, and viability, are the very ones who now are preaching that the new solutions included in the Integrity Act won't work. The problem isn't the legislation. The problem is USTA leadership, never missing an opportunity to miss an opportunity.

Andrew Cohen is a Standardbred owner and breeder.

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