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Keeping Pace: What's Next For HISA? No One Really Knows
If you aren’t following Lucinda Finley’s coverage of the legal challenges to HISA you should be. The University of Buffalo law professor has offered consistently smart legal analysis. The latest example came last week in a Thoroughbred Daily News interview when she weighed in on the Fifth U.S. Circuit Court’s lamentable decision striking down the enforcement provisions of the new federal racing law. Finley raised a problem with the decision that I did not address in my own Keeping Pace coverage of the ruling last week. I focused on the glaring factual error the judges made in linking HISA to the U.S. Anti-Doping Agency even though USADA has never been a part of HISA or its enforcement arm.
Finley focuses instead on the practical problems with the ruling. “Under the Fifth Circuit decision, we now have the situation where the HISA rules are the binding rules of racing in Texas and Louisiana. But the Fifth Circuit says that the enforcement of those rules by HISA is unconstitutional,” Finley told TDN. “That leads to a rather challenging practical situation where you have rules that can't be enforced. What does that mean for racing and horse and human welfare in those states? If HISA cannot enforce its valid constitutional rules, who is supposed to enforce them?” Who, indeed. The sloppiness of the court’s legal rationale was matched only by the practical chaos the decision leaves in its wake. What a dereliction of duty by the judges.
Like me, Finley doesn’t think that federal racing officials should ask the entire Fifth U.S. Circuit to overturn the decision its three-judge panel gave us. The most likely outcome of that scenario would be another crappy ruling from the Fifth Circuit. She wonders how the feds will petition the U.S. Supreme Court to review the Fifth Circuit decision. “If I were them, I would limit the petition to only the issue they lost on – namely the constitutionality of the enforcement mechanism. That would make it incumbent on the National HBPA and the other plaintiffs to cross petition and ask the Supreme Court to review the constitutionality of the rulemaking authority and the other issues they raised that the Sixth Circuit said were not good constitutional challenges.”
I don’t know what Lisa Lazarus & Co. are going to do. They have no comment at this time, they told me on Friday. What I think they should do is continue to put pressure on state racing officials in Texas and Louisiana (and racetrack owners and operators there) to comply with the new federal rules. HISA officials should do this not just because there is no legal reason not to – remember, even the Fifth Circuit held that HISA’s rulemaking powers are legitimate – they should do it because such pressure is the most direct way they can better protect Thoroughbred horses training or racing in those two states.
HISA still has the strongest legal hand. The Sixth Circuit ruling upholding the law is far more persuasive than the Fifth Circuit ruling that says HISA can constitutionally make rules but not enforce them. The feds should put pressure on Texas and Louisiana to enforce the federal rules that now apply in those jurisdictions. State racing officials will balk, of course, because they don’t believe in HISA or because they think the answer to horse racing’s survival in the U.S. is to give more drugs to more horses closer to race days. Let Louisiana racing officials, who imploded a few months ago, tell the world they won’t enforce federal rules to keep horses safer.
Spinning the Fifth Circuit’s HISA ruling
One federal appeals court (the Sixth) has ruled that HISA is constitutional. Another federal appeals court (the Fifth) has ruled that HISA is constitutional except as it is enforced. And a third federal appeals court (the Eighth) is now being asked to resolve another challenge to the federal racing integrity and safety law. Predictably, both sides in that dispute (brought by horsemen in Iowa and Arkansas and their conservative lawyers) are trying to spin the Fifth Circuit’s ruling earlier this month. But the Eighth Circuit case is a little different. It comes to the court after a federal trial judge refused to issue an injunction barring the feds from enforcing HISA.
Because of that procedural wrinkle, the Eighth Circuit judges can, if they choose, dispatch the challenge without necessarily getting entirely to the merits of HISA. It also means, I suppose, that the Eighth Circuit panel of three judges can gin up their own legal theories about the federal racing law that don’t mirror what the two other circuits have done. And that would make it even more likely than it is now that the U.S. Supreme Court ultimately will have to resolve this issue. Either way, as I wrote earlier, the Fifth Circuit has with its poorly-reasoned and researched ruling created a mess that will likely take years to clean up.
Interestingly, a few days before the Fifth Circuit dropped its decision, the National Horsemen’s Benevolent & Protective Association, one of the most ardent opponents of HISA, filed a petition asking the FTC to adopt a rule creating “no effect” thresholds. Those are, the HBPA tells us in a press release, “a laboratory testing detection level below which no owner or trainer will be punished for innocent and pharmacologically irrelevant concentrations of foreign substances that have no effect on a horse.” The HBPA should spend time and money trying to improve HISA through rulemaking and spend less of it trying to strike down HISA itself.
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HISA’s proposed budget is here, so are new safety rules
Meanwhile, HISA published its revised “Racetrack Safety” rules that are going to frustrate some trainers. “The updated rules on intra-articular injections are significantly stricter than what has been in place. A key point here: The day the horse receives an intra-articular injection counts as day one of the stand-down period,” wrote TDN’s Dan Ross in a piece outlining the changes. As of last Monday, “trainers are not permitted to work a horse for 14 days following an intra-articular corticosteroid injection into the front or back fetlock (increased from seven days), and are not permitted to start a horse for 30 days following an intra-articular corticosteroid injection into any fetlock (increased from 14 days).”
There was also a significant change to rules on voided claims and claiming waivers. “Under the new rules,” Ross reports, “if a claimed horse has a post-race positive finding – coined under HISA an ‘adverse analytical finding’ – the new connections of the horse have the option of voiding the claim, provided they provide written notice to the track stewards (where the claim took place) within 48 hours of being alerted of the positive.” Natalie Voss, editor of Paulick Report, focused on how the new rules may mark the beginning of the end for pin-firing. Soon, everyone will be focusing on HISA’s 2025 proposed budget, released late last week.
I will have much more to say about the budget in next week’s Keeping Pace column. I’ve asked HISA officials to answer some questions I have. For example, what’s the $10 million charge for “professional services”? And who exactly will pay that $58 million forecasted budget deficit? But there are also some answers in the proposal, which will need FTC approval. For example, the feds are budgeting $2.4 million for legal fees in 2025 and I am guessing that doesn’t include the legal work that FTC lawyers are doing to defend HISA from all the litigation mentioned above. And enforcement and testing amount to about three-quarters of the budget.
Hope for a crackdown on “beard” trainers and owners
HISA officials call it “paper training.” Most people in horse racing in North America call it the use of “beards.” Either way, the use of hidden ownership or hidden trainers is one of the most pernicious integrity problems in racing today. State racing commissions had neither the staffing nor the interest in doing the forensic accounting necessary to catch people willing to cheat on their friends and fellow competitors. And until recently there was little evidence that federal racing regulators were giving the problem the high priority it warrants. I don’t know how severe the problem is in Thoroughbred racing. I know it’s pretty bad in harness racing.
But now there’s evidence that HISA officials are willing and able to act with significant force when they come across a classic beard case. Nevada Litfin, a trainer in Minnesota, was initially suspended for five months by federal racing officials last year. “Litfin was found to have violated multiple rules, including possession of hypodermic equipment and possession or administration of injectable substances and prohibited drugs,” Ray Paulick reported. Instead of serving his punishment, however, Liftin continued to train his horses with the help of trainer Briannah McDaniel and Heather Davis, who was licensed as a “groom/hotwalker/stable supervisor.”
Liftin and company were caught. He now faces a five-year suspension. Davis, for her role, has received a three-year suspension. McDaniel, who cooperated with investigators, got a 45-day suspension. From federal regulators, the message is obvious – come forward to tell us what you know and you’ll get a lighter suspension. It’s really hard, I know, to follow the strings in these cases. It’s a lot easier for a trainer or owner who wants to evade responsibility to just re-list the horse with someone else (over and over again, if necessary) than it is for investigators to follow the re-listings from day to day or week to week. I’d like to see more investigations like this.
Notes
The Columbus blues. It’s sad in a way that United States Trotting Association officials keep complaining about declining interest in their district meetings while ignoring the most obvious reasons for the decline. In May, the USTA’s T.C. Lane lamented the poor attendance at these meetings and tried to defend the indefensible fact that the USTA has about 50 more directors than it needs. I responded to Lane’s column in a subsequent Keeping Pace column and got no response to it from the USTA’s leadership. Now, another USTA official, Mike Tanner, has written another piece in HoofBeats magazine and this time he’s offering an intriguing suggestion.
“In 2022, the USTA created a national election day, the second Tuesday of December, in which every district director up for reelection, no matter the district, is on the ballot,” Tanner wrote.
“Why not conduct voting on the rule change proposals on the same date? This could be done electronically via a secure platform which members could access through their USTA Member Accounts via Pathway. In advance of the voting deadline, the USTA would post online a video preview of the rule change menu, with each proposal detailed in a simple, easy-to-understand manner. Sponsor statements would be included, along with the operational issues, if any, to be considered should the proposal be approved.”
Great. Sign me up. But the USTA is going to continue to struggle with membership participation so long as the members believe that their participation is virtually worthless given the USTA’s leadership. A few weeks ago, USTA director Mark Ford and former USTA director David Siegel acknowledged what so many USTA members believe – there are only two people running the show at the USTA regardless of what the hundreds of pages of bylaws say. Until that changes, why should members spend what little free time they have trying to argue otherwise? Either Tanner and Lane don’t understand that fact or have chosen to ignore it. Like I said, it’s sad.
Good for C.J. Brown, a columnist with the Louisville Courier-Journal, for a smart piece about the opposition to HISA within the Thoroughbred industry. “It seems like there should be a way all the stakeholders in this could hash things out without needing the court system and the mounting billable hours to go with it,” Brown writes. He’s right. Before it’s all through, years from now, I reckon that tens of millions of dollars in legal fees and other advocacy and lobbying costs will have been spent by anti-HISA forces to avoid federal regulation. If just a fraction of that money were used instead to make HISA better the industry’s future would be much stronger.
