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West Virginia Trims Dates For ’24, Exact Schedules Hinge On Outcome of HISA Legality

Both Charles Town Races and Mountaineer Park got approval Wednesday from the West Virginia Racing Commission (WVRC) to reduce live racing dates in 2024 compared to recent seasons.

The Horsemen's Benevolent and Protective Association (HBPA) chapters at both tracks supported the diminished schedules based on available purse funds and projected horse populations.

Right now the placeholders are 158 dates for Charles Town and 121 for Mountaineer.

But the exact number of programs will ultimately be contingent on the outcome of several overlapping federal lawsuits that have to do with the legality of the Horseracing Integrity and Safety Act (HISA).

In July of 2022, the states of West Virginia and Louisiana won a preliminary injunction that has kept the HISA rules from being implemented in those two states until their lawsuit challenging the constitutionality of HISA gets decided in full.

Then in September of 2023, the judge handling that case ordered it to be “administratively terminated” until the United States Fifth Circuit Court of Appeals made a ruling in a separate (but related) suit in which the National HBPA is also alleging that HISA is unconstitutional.

Oral arguments in the HBPA vs. HISA case were heard Oct. 4 but no Fifth Circuit decision has been issued yet.

WVRC executive director Joe Moore explained during the Dec. 13 meeting that if HISA were to be deemed legal nationwide and/or the court's injunction barring implementation in West Virginia got lifted, both tracks would need to recalculate how much purse money was available and how many racing dates those funds could cover.

That's because Charles Town and Mountaineer would be subject to HISA assessments for safety oversight and drug testing services that they currently don't pay because of the injunction that grants them an exception.

According to HISA's 2024 budget, West Virginia's assessment for next year is $4,448,269 (Charles Town $3,281,367; Mountaineer $1,166,902).

Moore said that “if HISA were to become effective in West Virginia, I suspect Charles Town and the horsemen would consider reducing their race days by a number to ensure that there were purse monies available after the [HISA] assessments were calculated for them.”

Charles Town's director of racing, Charlie McIntosh, concurred.

“If HISA were to come back into effect, we'd have to sit down and evaluate” funding options, McIntosh said.

Mountaineer gate | Coady Photography

No representative from Mountaineer spoke on the track's behalf during the meeting.

The two tracks handled their dates reduction requests differently. Charles Town asked for and received 158 dates but left the door open to come back to the commission for a further reduction request if necessary.

Mountaineer took the opposite approach, asking for and receiving the commission's approval for two dates contingencies so the track wouldn't have to come back a second time to request another trim if HISA gets legalized in the state.

So the WVRC approved 121 dates for Mountaineer, with Moore explaining that “if feasible and [if West Virginia continues to] remain exempt from HISA, their number of live race days would increase to 128.”

Moore said Mountaineer's season would run Apr. 28-Dec. 4 under the first contingency, with the meet extending through Dec. 11 if the second plan got utilized.

Charles Town's 2024 schedule, according to the track's website, will consist of four- and three-date weeks nearly year-round, with breaks Aug. 25-Sept. 11 and Dec. 15-31.

Charles Town's 158 dates for 2024 continues a downward trend. The track was awarded 164 dates in 2023 and 179 in 2022.

Unless Mountaineer ends up running the bumped-up 128 dates, its 121-date allotment also represents a decrease, from 124 dates in 2023 and 130 dates in 2022.

(All dates cited above are based on dates as originally assigned by the commission, and do not reflect any in-season program losses that might have occurred because of weather cancellations.)

Even in years when the costs of HISA assessments have not been in play, the awarding of race dates in West Virginia has been a somewhat confusing several-step process. A state statute requires Charles Town to apply for 220 programs every year, and Mountaineer is required to apply for 210 dates. But those quotas haven't been reached for quite some time.

What has ended up happening in recent seasons is that after the initial approvals of those mandated 220 and 210 dates every November by the WVRC, both venues have subsequently come back before the commission to ask for reductions that reflect what each track and its HBPA representatives think is a workable schedule.

The dates reduction votes were unanimous Dec. 13, with WVRC chairman Ken Lowe Jr. and commissioner J.B. Akers voting in the affirmative, while commissioner Tony Figaretti was listed as being absent from the meeting because of a travel conflict.

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Mountaineer Steward Defends $100 Fine for Jockey Who Whipped Horse in Face

The chief state steward at Mountaineer Park, Jim O'Brien, on Friday defended his board's seemingly light $100 penalization of jockey Jose A. Leon after other licensees who were on horseback during training hours at the West Virginia track Sept. 10 testified that the 24-year-old rider dismounted from an unruly horse and struck it across the face with his whip.

“He was wrong, but I guess he let his anger get the best of him, and he hit the horse in the face,” O'Brien told TDN.

O'Brien added that he and the other two Mountaineer stewards–Maureen Andrews and Phil Heidenreich–won't be revisiting the penalty, because they believe the punishment fits the violation.

“The horse was acting up after he got off, which is no excuse, but that's what happened,” O'Brien said.

Leon, in a separate interview Sept. 22, denied he hit the horse in the face after dismounting from it. But he did admit that he was “frustrated,” and that he struck the horse “in the mouth” earlier in a workout while still on horseback in an effort to keep it from careening through the outside fence after it bolted.

Specific information about the horse's identity and condition were not available at deadline for this story.

TDN first reported Leon's fine on Sept. 21. At the time of publication, details about the incident were scant. The stewards' ruling, dated Sept. 18, didn't even mention that a whip was involved.

That initial news story caught the attention of TDN readers, and it quickly cycled to the top of the most-read articles list. Within 24 hours of publication, it drew 19 reader comments, which skewed 18-1 against Leon's actions, with a number of the commenters suggesting that the penalty should have been stiffer.

One reader who phoned TDN directly was Justin Jensen, a former jockey who now owns, trains, and exercises horses at Mountaineer. Jensen said he had witnessed Leon's actions, and was one of the witnesses who reported what happened to the Mountaineer stewards.

Jensen said his motivation for wanting his side of the story told was because “A hundred-dollar fine isn't acceptable. The stewards are not doing what they should be doing by throwing the book at him a little bit more.”

Leon, Jensen, and O'Brien essentially told TDN the same version of what occurred during the botched workout. It's what happened after the horse got pulled up that Leon disputed.

“I'm at the three-eighths pole galloping in a set, and Jose Leon worked up the rail, worked past us, and his horse bolted to the outside,” Jensen said. “Now to his credit, he stayed on, and I thought for a second that horse was going through the outside rail. And he corrected the horse by hitting it in the face.”

O'Brien corroborated that explanation: “Other witnesses said they don't even know how he stayed on the horse, and the horse was acting up bad,” the steward said.

“I showed him the whip,” said Leon, who has been a licensed jockey for five years. “I did hit him on the bit; just tried to correct him. The stewards told me that was okay, because they know if I'm in a dangerous [situation], I really have to do something to correct the horse. I hit the horse on the mouth. It wasn't on the face.”

Jensen said that at that point, he couldn't really blame Leon for his actions.

“You're in a dangerous spot. He reached out and smacked the horse in the face. Not the end of the world, okay?” Jensen said.

But what happened afterward troubled Jensen.

“So now he gets the horse back down on the rail,” Jensen continued. “They finish the workout, and I'm galloping right behind him. We pull up. I'm maybe 30, 40 yards away from him. Now the problem is done. All he had to do was turn that horse around and jog it home. And because he's got a bad attitude, and he always has a temper, he jumped off that horse, and as he jumped off that horse, he grabbed the right rein with his left hand, and he reached back with his right hand, and he whipped that horse in the face. I don't know if he hit him in the eye, but he whipped him hard across the face.”

Jensen continued: “Now I yelled at him, and I said, 'Jose, that's enough.' I said, 'Calm down, get that horse back to the barn safely, and just take a breath.' We rode away from him. He continued to get a little bit more mad at the horse, but he did not whip him in the face again. But he did whip him in the face the first time, 100 percent.”

Jensen said by that time, outrider Theresa Akers had come over to assist. She would also testify at Leon's hearing.

“If we had some patrons from the casino standing up on the turn, watching horses train in the morning, which they do quite often, and they witness a jockey whip a horse in the face like that, that makes our business look worse,” Jensen said. “And right now, horse racing is under the microscope.”

Asked directly by TDN if he dismounted from the horse and struck him, Leon said no.

“I came up to the seven-eighths pole [and] just put my stick up, and I started, like, holding the bridle, working with him,” Leon said. “The outrider, she was saying I hit the horse in the face, that the horse had an [injured] eye, and I explained to the stewards the horse did not have any damage, that the horse was fine, and everything was okay. The horse is the type of horse that is a crazy horse. He's super hyper.”

“I was frustrated, but I did not do things on purpose,” Leon said. “I know it's something serious. I will pay the fine, because I know if I lose [an appeal], I don't want to get in trouble for something that I know that I did, but it wasn't on purpose to hurt the horse. I did it to take care of myself. I know with all the [new] rules that are going on, [an incident like this] can affect my career.”

Jensen, in telling his version of events, also referenced the slew of new national anti-whip rules that are in effect. He said he can't square Leon getting fined only $100 for what happened when other jockeys who violate crop rules for being a few strikes over the in-race limit get hit with multi-day suspensions or fines that are much higher than that.

Jensen also gave an example of something that happened to him last year at Mountaineer: He got into a disagreement with the track superintendent and swore at him. He said he was asked to explain his actions before the same board of stewards and admitted that what he said was not appropriate.

“Now those were words,” Jensen said. “How did I get a $400 fine for saying [expletive], but this guy gets a $100 fine for whipping a horse in the face?”

Jensen said he is well aware that speaking out against alleged horse abuse can have repercussions for those within the industry who choose to report it, especially at a small track like Mountaineer. He said there were others who witnessed Leon's actions on that morning but chose not to come forward, and that he understands their reasons for not doing so.

“But I'm okay with you putting my name on this,” Jensen said. “I'm probably going to be dragged through the mud with the stewards. I foresee them dragging me in and giving me a hard time over this. But you know what? There's a difference between right and wrong, and I'm trying to stand up for the right right now.”

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Mountaineer Jockey Fined $100 for Striking Horse in Face

Jockey Jose A. Leon has been fined $100 for hitting a horse in the face during training hours at Mountaineer Park.

According to a Mountaineer stewards' ruling, “Mr. Leon was caught striking a horse across the face on Sunday, Sept. 10, 2023, during morning exercising.”

The ruling didn't specify whether Leon struck the horse with his whip or his hand.

Joe Moore, the executive director of the West Virginia Racing Commission, wrote in an email that he did not have any details about the incident beyond what the Mountaineer stewards stated in the ruling.

Leon, 24, represented himself at a Sept. 18 stewards' hearing, according to the ruling. Moore told TDN Leon has not appealed, but is still within his 20-day window to do so.

Leon, who has been a licensed jockey since 2018, has compiled a 38-for-304 record so far this year, riding in West Virginia, Ohio, Arizona, and in the mid-Atlantic region.

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Judge Halts Anti-HISA Suit in Louisiana Pending Outcome of HBPA Case in U.S. Appeals Court

A federal judge has stayed a 14-month-old lawsuit initiated by the states of Louisiana and West Virginia that is trying to wipe out the Horseracing Integrity and Safety Act (HISA) via alleged constitutional violations, ordering the case to be “administratively terminated” until the United States Fifth Circuit Court of Appeals makes a ruling in a separate suit in which the Horsemen's Benevolent and Protective Association (HBPA) is also alleging HISA is unconstitutional.

However, U.S. District Court (Western District of Louisiana) Chief Judge Terry Doughty wrote in his Sept. 14 ruling that, “This Order shall not be considered a dismissal or disposition of this matter,” and that he was halting the case while the Fifth Circuit decision played out “without prejudice to the right of the parties to reopen the proceedings.”

This means the plaintiffs (the two states are joined by the Louisiana racing commission, the Louisiana HBPA, the Louisiana Thoroughbred Breeders Association, West Virginia's racing commission, and five individuals regulated as “covered persons” under HISA) and the defendants (the HISA Authority, the Federal Trade Commission [FTC], plus overseers of both entities) must now await the decision–likely to be issued months from now–that will result from the Fifth Circuit oral arguments scheduled Oct. 4.

In 2 1/2 weeks, the National HBPA and 12 of its affiliates will be trying to prove claims that the 2022 rewrite of the HISA law remains “patently unconstitutional,” and that the Authority overseeing the sport “is basically a private police department” whose sweeping powers equate to “oligarchic tyranny.”

The HISA Authority and the FTC will go into those same arguments backed by a lower court's opinion issued in May that ruled HISA is indeed constitutional, because “Congress cured the unconstitutional aspects of HISA's original approach.”

It's also on the judicial record that the U.S. Court of Appeals for the Sixth Circuit upheld the constitutionality of HISA back in March.

One day prior to Judge Doughty's ruling, Magistrate Judge David Ayo wrote in a report that recommended staying the Louisiana case that the multiple, overlapping anti-HISA lawsuits currently swirling in the court system are clogging federal dockets.

“After an exhaustive review of the landscape of suits challenging the Act, this Court concludes that [an amended complaint the plaintiffs had filed] is the result of deliberate strategy” that equated to “an abuse of procedure and an impermissible use of judicial resources,” Judge Ayo wrote in his Sept. 13 report.

The original lawsuit in this case was filed June 29, 2022, alleging that HISA violates the Fourth, Seventh and Tenth Amendments to the U.S. Constitution, plus the Administrative Procedure Act, which governs the process by which federal agencies develop and issue regulations.

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