Texas rebels, questions abound, drug enforcement disorganized, oh my!
The Horseracing Integrity and Safety Act (HISA) takes effect on July 1 and the “Agency” will take control of horseracing. Everyone in racing must register. And there will be rules, lots and lots of rules. Albeit many are perplexed by those rules.
I have read, watched, listened, and attended. The main takeaway from all of this is that you MUST register. And why? To affirm that the “Authority” has authority. And so, they can have your information in their database.
The rules? Well, that is for you to figure out by reading all the bill. Or all the stuff on social media. Or attending numerous webinars.
I am still confused about both the title of the bill and the piecemail implementation. I get the “H” is for horseracing. The “I” is for integrity. There was a lot of talk of horseracing’s reputation and image with the public and animal rights groups. We shouldn’t be doing this for them, we should be doing this for the betterment of the industry. It’s our integrity we’re protecting.
So, is the “I” about medication/drug enforcement? Must be because I heard it said the the “Safety part will go into effect July 1.” It was all supposed to go into effect July 1. If the second part isn’t ready to go, thoroughly prepared and everything in place, then none of it should go into effect, in my opinion and that of others.
When HISA was first conceived, I was excited. I even nominated quite a few people when HISA invited me to be on the nomination committee. I chose trainers and industry insiders who understand the punters and backstretch. And the horses. Because isn’t this ultimately about the horses? That’s what the “H” is for. No horse, no horseracing.
If you look on the HISA website “About” section, you will find 28 people on the board and councils.
But there are two things you won’t find. A link to the actual Horseracing Integrity & Safety Act (HB) and the name of a working horseman or stakesholder. You know, the people who must register. There is one jockey, John Velazquez.
Apparently, there is some disorganization in setting up the medication program and that is not going into effect until Jan.1, 2023. We were also told at a webinar the program has no enforcement agency which is one of the hold ups in addition to having no approved budget until the next Congressional session.
Drug Free Sport International was announced in a HISA press release as the enforcement agency which is listed on their website. So, why do they need to find an enforcement agency? And, wasn’t this the main point behind national oversight?
Per the HISA website:
Drug Free Sport International (DFS) / Horseracing Integrity and Wellness Unit (HIWU)
HISA’s board selected DFS to build its independent ADMC enforcement agency. HISA sought out DFS given its exemplary record of success in its drug testing and enforcement partnerships with leading sports organizations, including the NFL, NCAA, NBA, LPGA, PGA Tour, NASCAR and MLB. DFS will establish HIWU, which will be led by a five-member Advisory Council, to serve as the new ADMC enforcement agency for thoroughbred racing. It is expected that HIWU’s investigative function will be supported by 5 Stones intelligence, a leading professional services company comprised of former DEA, FBI, IRS, ATF, and NYPD Special Agents and Detectives who have led some of the largest and most successful sports investigations in history.
There are 38 jurisdictions in North American Thoroughbred horse racing. The idea behind HISA was to unify all jurisdictions for the betterment of the sport. It seems the opinion of most horsemen/stakeholders is HISA is becoming a burden and an enigma.
The Horseracing Integrity and Safety Act of 2020
H.R. 1754 or better known as the Horseracing Integrity and Safety Act of 2020 was sponsored by Rep. Paul Tonka (D-NY) and originally had 27 cosponsors. It ended up with 261 cosponsors (click for list).
The bill was referred to the House Energy and Commerce Subcommittee on Consumer Protection and Commerce on March 15, 2019. Mr. Pallone, from the Committee on Energy and Commerce submitted a report to the House on Sept. 20, 2020. Click here for report
The Act passed the House and was then sent to the Senate. After being received by the Senate the bill was sponsored by Sen. Mitch McConnell (R-KY). 09/09/2020 Read twice and referred to the Committee on Commerce, Science, and Transportation. (Sponsor introductory remarks on measure: CR S5514-5515.)
The Horseracing Integrity and Safety Act of 2020 passed into law Sept 20, 2020.
The final bill is explained as such:
This bill recognizes the Horseracing Integrity and Safety Authority for purposes of developing and implementing a horseracing anti-doping and medication control program and a racetrack safety program.
The authority shall establish an anti-doping and medication control standing committee and a racetrack safety standing committee to provide guidance to the authority on the development and maintenance of the programs.
The Federal Trade Commission (FTC) shall have oversight over the authority. The authority shall submit to the FTC any proposed rule, standard, or procedure developed by the authority to carry out the horseracing anti-doping and medication control program or the racetrack safety program. The authority shall seek to enter into an agreement with the U.S. Anti-Doping Agency or an entity equal in qualification under which the entity acts as the anti-doping and medication control enforcement agency under this bill.
Among the required elements of the horseracing safety program are sets of training and racing safety standards consistent with the humane treatment of horses, a system to maintain track surface quality, programs for injury and fatality analysis, investigation and disciplinary procedures, and an evaluation and accreditation program.
The bill sets forth other provisions regarding (1) funding, conflicts of interest, and jurisdiction; (2) registration with the authority; (3) program enforcement; (4) rule violations and civil sanctions; (5) testing laboratories; (6) review of final decisions of the authority by an administrative law judge; (7) unfair or deceptive acts or practices; and (8) agreements with state racing commissions.
Beginning July 1, 2022, all Covered Persons, and all Covered Horseraces (HISA) are required to comply with the FTC approved regulations of the Authority.
The rules of the Authority promulgated in accordance with [the statute] shall preempt any provision of State law or regulation with respect to matters within the jurisdiction of the Authority under the chapter.
In Horseracing, interstate commerce refers to exporting a product from one state to another and that being simulcasting, one of the biggest money-makers in the industry. A simulcast signal can make or break a track. Just ask Arizona Downs who cancelled their comeback meet early in 2019 due to a dispute with Monarch Content Management over access to simulcast signals.
As reported by ArizonaCentral “The struggling Arizona Downs horse track in Prescott Valley, which staged a grand opening in May, has abruptly announced it is cutting short the season because track operators have run out of money.”
This is where Texas’ issues come in. We’ll get to Texas in a bit.
TDN did a Q&A with attorney Frank Becker about the legality of HISA’s authority. Here is an excerpt:
The federal government’s authority is limited by the United States Constitution*. Typically, the federal government justifies its constitutional authority for pervasive regulation on the ‘commerce clause’ of the constitution. The ‘commerce clause’ provides that the federal government has jurisdiction over ‘interstate commerce.’
HISA’s purported jurisdictional authority is based on the commerce clause. Thus, it relies on ‘interstate commerce’ as its justification. HISA attempts to codify the authority in the definitions of ‘covered horse,’ ‘covered persons’ and ‘covered horserace.’
*Editor’s Note: As far as the Constitution is concerned, the 4th Amendment has been invoked repeatedly during discussions regarding the Authority’s right to search properties of covered persons/horses and seize property.
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
This article is an overview of the 4th Amendment by Cornell Law School. Click to read it in its entirety.
In general, most warrantless searches of private premises are prohibited under the Fourth Amendment, unless specific exception applies. For instance, a warrantless search may be lawful, if an officer has asked and is given consent to search; if the search is incident to a lawful arrest; if there is probable cause to search and there is exigent circumstance calling for the warrantless search. Exigent circumstances exist in situations where a situation where people are in imminent danger, where evidence faces imminent destruction, or prior to a suspect’s imminent escape.
Trying to clarify the situation, many agencies are offering webinars
From a Jockey Club Press Release: The OwnerView’s webinar on registration with the Horseracing Integrity and Safety Authority (HISA), was held Thursday, June 16, as part of the virtual Thoroughbred Owner Conference series, and is now available for viewing on OwnerView’s YouTube page at bit.ly/ownerviewpage. The webinar was moderated by TVG Analyst Caton Bredar and included Lisa Lazarus, chief executive officer of HISA, and Steve Keech, technology director for HISA.
OwnerView is a joint effort spearheaded by The Jockey Club and the Thoroughbred Owners and Breeders Association to encourage ownership of Thoroughbreds and provide accurate information on aspects of ownership such as trainers, public racing syndicates, the process of purchasing and owning a Thoroughbred, racehorse retirement, and owner licensing.
The need for a central resource to encourage Thoroughbred ownership was identified in the comprehensive economic study of the sport that was commissioned by The Jockey Club and conducted by McKinsey & Company in 2011. The OwnerView site was launched in May 2012. •
Thursday, June 16, the Maryland Thoroughbred Horsemen’s Association also hosted a live webinar which I attended. The affair was moderated by Alan Foreman, Council for the Thoroughbred Horsemen’s Association, with panelists, Lisa Lazarus, Steve Keech and Ann McGovern. The event was conducted from Tycoons on the first floor of the clubhouse at Laurel Park.
There were many questions via phone and comments via the Zoom app. Most regarding registration requirements and restrictions, whip rules and medication regulations.
There were other issues discussed. Violations originating from contamination; the Authority’s purview to retire a horse who hasn’t started or worked in a year? Does the Absolute Insurer Rule still apply? Also, what is the burden on the trainer? Do the Federal regulations supersede State regulations? What roll with State Racing Commissions play under HISA? Why should the owner be penalized for a whip violation? What role will the Stewards play? How will HISA differentiate between whip usage for safety and abuse?
Participants asked what the requirement were to register for Owners’ partnerships. It was explained by Alan Foreman that only one member of the partnership need register. Then he said if you owned more than 5% you had to register.
Those who operate farms who provide layups were concerned what regulations they might fall under since the horses that would be on their property would not be registered to them.
There was a lot of discussion regarding the medication regulations. One question was regarding using medicated products for treatment and cleaning. Mostly, we were told the final regulations were not yet approved so there weren’t a lot of answers.
Medication regulations will not go into effect until Jan. 1, 2023. It was explained that HISA needs to acquire an enforcement partner for the medication regulations. Originally, Drug Free Sport International was to be the enforcement agency per a release from HISA May 4, 2022. This was supported in released statement by industry leaders such as Keeneland, Breeders’ Cup and the Jockey Club.
Also, there is no approved budget for to oversee and enforce the medication regulations. That will have to wait until Congress convenes for the 118th session on Jan. 3, 2023.
For a follow up to the Maryland webinar listen to the Q&A with Alan Foreman on Off to the Races Radio with TheRacingBiz’s Frank Vespe. The interview begins at 29:00. Here is the lead question with Foreman’s answer and an additional comment:
FV: What was the message to the public about what HISA and its implement and what it does.
AF: The most important message that HISA brings is that racing which has historically been a state sanctioned state-controlled state regulated business now will have uniform standards across the board when it comes to what the public associates with doping but more importantly for our purposes the use of medications and therapeutic medication to benefit the safety health and welfare of the horse and that we’re also implementing national minimum standards to protect the health safety and welfare of our horses and riders. It’s something that we have not had. It’s something, we go from crisis to crisis and it seems like it’s been the case over the past decade, certainly the last five years in particular, we have not been able to answer to the public as to what we do, how we do it, why we do it and it has allowed animal rights groups, its allowed legislators, its allowed the media to question whether or not racing is an anachronism that ought to be eliminated like the circus, like Seaworld and others or are we doing right by our equine athletes and are we doing right by the integrity of our sport justifies us to continue doing business what we’re now into the next century so I think it’s critical, I think it gives us the opportunity to address public concerns and to, I believe, to, when we run into a problems and crises, that we have the ability to answer the questions for them and demonstrate that we are the most intensely regulated sport of any sport and that we’re doing right by our equine athletes. ….
Regarding who must register:
Any individual who is a “covered person,” a licensed owner, trainer, breeder, backstretch person, veterinarian, anyone in connection with the health, safety and welfare of the horse is required to register. The registrations serve two purposes. HISA knows who the covered persons are, it goes into their data base, they’re not asking horsemen for information that’s not otherwise already available. But the statute requires that every covered person must register as a condition of racing, and it also provides in the statute that every horsemen must affirm acknowledge jurisdiction of HISA with respect to the programs that HISA covers. Two programs. One is medication, drug testing, anti-doping and the other is the safety program. That includes the racetrack by the way. Anyone who is a stakeholder in the business is required to register. Now, what has happened with HISA because, the program effective dated July 1, the safety program is in place because it’s been approved by the Federal Trade Commission (FTC) And it virtually mirrors what we do in Maryland and what we do in the Mid-Atlantic with respect to safety standards and safety program with respect to the strategic plan to reduce equine fatalities.
HISA did release a draft of the Anti-Doping and Medication Control Program regulations that take effect Jan. 1, 2023, have been submitted to the Federal Trade Commission. Links to the documents appear at the Thoroughbred Horsemen’s Association website under its HISA section.
The FTC will take comments on the proposed regulations.
Comments can be submitted by email [but I couldn’t find the email]. HISA intends to present final rules to the FTC on July 1, 2022, after which there will be another public comment period. There is a place in the FTC website for public comments.
What about claims? Do you have to change the registration on the day of the claim? What about those without computers for online-only registration?
Alan Foreman, council for THA, sent a letter to HISA date April 8, 2022, in response to the proposed regulations and was concerned with many issues. You can read them in the attached letter but here are two key takeaways.
“In addition to our review, we had the Executive Directors of the affiliate THA organizations (New York, New Jersey, Pennsylvania, Florida, Maryland, Delaware and Illinois) review the regulations insight of their intimate knowledge of the horsemen’s and backstretch communities and issues that might complicated or compromise HISA’s ability to get all covered persons registered in a timely and ongoing fashion.”
One of those areas of concern:
“It appears that the registration will be done only online. This presents difficulties for a large portion of the community who are not literate, either with computers or otherwise. This is compounded by the fact that many are not proficient in the English language [HISA has since added a Spanish registration section]. Should there not be other registration options for those without access to computers or who are not computer literate? Will registration options be bilingual to accommodate multi-languages? Does not Federal law impose such a requirement and what is HISA’s plan in this regard? HISA is not dealing with a FINRA-type population.
“Will there be a fee for registration and how does the Authority envision collecting such fees from each registrant?
“With respect to “covered horses”, whose ownership and care, custody and control can change on a daily basis, how does HISA intend to keep registration current? Is it realistic to assume that owners and trainers are going to be in constant communication with HISA to update ownership and control? Cannot this information be obtained directly from the racetracks through their internal systems and/or InCompass?’
This is the latest FTC proposed HISA Registration Proposed Rule dated May, 17, 2022.
According to this summary in the HISA Enforcement Rule submitted to the FTC Jan. 26, 2022, the FTC has 60 days [for public comments] to approve or disapprove a proposed rule modification. Therefore, I assume, the FTC has until July 17, 2022, to review the proposed rule submitted by HISA on May 17, after the law goes into effect.
What will be the code for track surfaces under HISA? Nation Thoroughbred Racing Association (NTRA) safety code for track surfaces were referenced but no other information was offered regarding any HISA regulations.
The NTRA has their own Safety an Integrity Alliance Code of Standards. The Alliance, formed in October 2008 with the goal of establishing national uniform standards in the areas of safety and integrity, includes 55 racetracks in North America and every major national horsemen’s organization. Twenty-two racetracks are fully accredited. That’s less than half.
NTRA announced June 8 that they opened an office in Washington, D.C. in addition to their offices in Lexington, Ky. and New York City.
Here is the NTRA 2021 132-page Code of Standards (click for document)
Also from their 2014 press release:
For 2014, the Code of Standards has been expanded to encourage adoption of a model rule stating that every licensee shall do “all that is reasonable and within his/her power and scope of duty” to prevent all prohibited substances from being used on a horse entered to race or recording an official workout. The rule also forbids any form of “cruelty, mistreatment, neglect or abuse” of any animal and requires the establishment of a process (such as a toll-free hotline) for reporting such instances.
Also expanded in the 2014 Code are Racing Surface Maintenance standards that call for electronic data collection protocols to monitor weather, watering, maintenance, material addition and surveying, as well as turf-specific data on re-sodding and cut lengths. Quality control measurements should also be conducted on moisture, cushion depth and material composition.
Another new addition to the Code is a stipulation that members whose drug testing lab has not begun the Racing Medication and Testing Consortium’s lab accreditation process by Jan. 1, 2015, will have their Safety and Integrity Accreditation revoked or denied.
Compliance standards cover six broad areas: injury reporting and prevention; creating a safer racing environment; aftercare and transition of retired racehorses; medication and testing; jockey safety and health; and wagering security. Within those six categories, specific standards will focus on many areas including:
• Systematic reporting of equine injuries
• Aftercare of retired racehorses
• Pre- and post-race veterinary examinations
• Post-mortem exams
• Health and safety of jockeys
• Riding crops and their use
• Horse shoes and hoof care
• Safety research, including racing surfaces
• Safety equipment for jockeys and horse handlers
• Safety training
• Anabolic Steroids
• Alkalinizing agents (TCO2)
• On-track emergency medical care for humans and equines
• Out-of-competition testing
• Freezing and retrospective testing of post-race samples
• Continuing education
•Totalizator technology and “stop wagering” protocols
• Wagering incident investigation
The NTRA Safety and Integrity Alliance is a standing organization whose purpose is to establish standards and practices to promote safety and integrity in horseracing and to secure their implementation. Information on the Alliance, including the Alliance Code of Standards, can be found at www.NTRAalliance.com.
As we know, track surface condition has been a factor at several racetracks around the country with horse fatalities and injuries, Santa Anita being the most prominent where there were 30 horse deaths in six months in 2019 which brought most of this to the mainstream media and the public’s attention.
Laurel Park also had issues with its track surfaces in 2021. The Maryland Jockey Club canceled three planned racing cards for a weekend and shifted the remainder of its 2021 spring meet to Pimlico Race Course as officials continued to assess problems with the main track surface at Laurel Park.
That time was extended into August as they continued to work on the track surface and live racing continued at historic Old Hilltop.
Texas is challenging the concept
J.N. Campbell of Horseracing.net wrote an excellent piece regarding the situation in Texas, including the reaction of the Texas horsemen. This an excerpt:
Breaking News … The lone star moment appears to have arrived early … well before July 1. They’ve been saying it, after all … Amy Cook, the Executive Director of the Texas Racing Commission (TXRC) did. The Chairman of that state government entity, Judge Robert C. Pate, did too. Over this past month, they both took the position that when it came to carrying out the Texas Racing Act, they could not do their jobs alongside the Horseracing Integrity and Safety Authority (HISA) because the latter would preempt the power of the former. That was unacceptable, and even though both the TXRC and HISA agree that Thoroughbred racing is a great sport; they differ when it comes to “authority.”
Cook and Judge Pate welcomed the opportunity to talk to HISA’s small cadre of specialists that include what many consider to be a “perfect fit” for the organization that will clean-up horse racing. CEO Lisa Lazarus and General Counsel John Roach finally accepted an invitation to visit last Wednesday, months after it was issued by Cook. After the TXRC adjourned their June 8 Session, the real meeting took place afterwards, but clearly little was accomplished. Late this afternoon, Cook issued in a letter what she called an Approval of Pari-Mutuel Simulcast Wagering Import and Export Requests Policy Statement, which was addressed to “All Occupational and Business Licensees of the Texas Racing Commission.” At the heart of that group … are the horsemen.