The HISA panel at Wednesday’s opening session of the National HBPA Conference. From left: Peter Ecabert, Daniel Suhr, Pete Sacopulos. (Denis Blake/NHBPA)
National HBPA Release
ALTOONA, Ia.— Attorney Daniel Suhr updated the audience on the Fifth Circuit Court of Appeals’ finding announced July 5 that while HISA’s rule-making procedures were constitutional, its enforcement of those rules is not. The suit is in a 45-day period while the Federal Trade Commission and the HISA corporation decide if they will appeal.
With the Sixth Circuit upholding HISA’s legality, the split among jurisdictions is likely to land the case before the Supreme Court, Suhr said, adding that the additional case in Louisiana is still awaiting a ruling. There also is an Eighth Circuit case awaiting a decision.
Even if the Fifth Circuit decision didn’t give the horsemen everything they’d hoped for, Suhr called it “a great opinion.”
“Judge Duncan gave us everything we need to go on and move forward in a great position,” he said.
Suhr expressed confidence that, if the case goes to the high court, the majority of justices will rule in favor of the horsemen and strike down HISA.
“My version of the Kentucky Derby is the Supreme Court oral argument,” he said. “I think that’s where we’re going to end up, and I’m really hopeful when we get there. Just do math. I can count to five. Looking at the Supreme Court over the course of the last year for certain, for the last five years, there has been a consistent pattern where six of the justices are deeply skeptical of what I’ll call the modern administrative state…. But I don’t want to give up on getting all nine justices.
“… There are three other justices, though, who come from a different ideological basis. They’re really concerned about the rights of criminal defendants…. So I’m somewhat OK that with the fact that we’re going to have this not about rule making but rule enforcement. Because I think it gives us a better shot at convincing them to come around. I think they’ll be just as offended as Judge Duncan was at the idea that we’re going to have people running around roughshod over people’s rights.”
In introducing the panel, National HBPA CEO Eric Hamelback called it “a new day” in the wake of the Fifth Circuit opinion.
“HISA has become our industry’s new four-letter word,” he said. “But I also want to say that the National HBPA had the same mission longer than HISA. We wanted national uniformity. We strived for national uniformity. We even supported the RMTC (Racetrack Medication & Testing Consortium) in an effort to do it in a scientistic fashion. So the mission has been the same. But when we started down this path after the (HISA) bill was signed into law, I felt I made it very clear publicly that the stance of the National HBPA is, and remains, to do our due diligence to protect horsemen. That’s what we’re doing: We’re pursuing this because there was a concerted effort to review the Act, and we did not feel like it was in the best interest of the horse.
“We want a level-playing field. We want cheaters out of the game. But how are we going to do it in the best way possible to protect horsemen, and is this Act the right thing to do? I think now we can justly say this act as a whole is not right for horsemen and the horse-racing industry and it’s not doing what is necessary to protect the horse.”
But even with the favorable ruling in the Fifth Circuit, Hamelback said he resists viewing the results in terms of winning and losing. That is a position he’s morphed into, he said, after having wins and losses ingrained in his psyche through his lifetime passions of football, polo and horse racing.
“You can’t think of that now, in that fashion,” Hamelback said. “If you take a driver’s test and you fail, it doesn’t mean you got every question wrong. You can get things right. You can have some safety regulations that are good. You can have some medication rules that are good. But if you don’t get it all correct, you fail. That’s what HISA is doing right now for horsemen: they’re failing. Three constitutional opinions have been rendered against the Act… Therefore, it is not as a whole what’s best for horsemen. It’s not about winning, necessarily, or losing. We can win this round in the courts; we have to wait and see what comes up next. But it needs to be a complete Act; it needs to be what’s best industry of horsemen. And it needs to be in the best interest of the horse. And it needs to protect the industry. I don’t think, if you’re true to yourself, anybody — even outside this room — can 100 percent say what’s going on right now is in the best interest of the entire industry.”
