Rebellion from within as the industry rears its ugly head
— RESEARCHED AND WRITTEN by JANE ALLIN
For at least a decade or more, horse racing in the U.S. has been under the microscope owing to its continued manipulation of therapeutic drugs and their performance-enhancing cousins, as well as other sinister potions concocted by those in pursuit of winning at all costs. In fact, it has evolved into an utter crisis with both the public and racing insiders calling for reform as they continue to watch the catastrophic injuries happening at double or triple the rates observed in the rest of the world. And each time a string of these multiple events happens demands to ban racing altogether get louder and stronger.
Of course, the first and foremost step towards resolving this situation is the elimination of the fragmented individual state authorities and the establishment of a national governing body that formulates the rules and is also in control of drug testing across all racing jurisdictions in the country.
This is precisely what the Horse Racing Integrity and Safety Act (HISA), which was signed into law in late December 2020, is intended to do. Or so they say.
Despite the notion that the HISA had the support of key stakeholders within the racing industry, it didn’t take long for the dissenters to file a lawsuit claiming that Congress acted unconstitutionally when it voted to delegate rule-making authority to an unelected private entity. First, the National Horsemen’s Benevolent and Protective Associate (HBPA), in consort with affiliate chapters from eleven states, filed in March this year, followed shortly by the United States Trotting Association (USTA) who joined another Federal lawsuit asserting the same complaints.
What is the HISA?
The Horseracing Integrity and Safety Act of 2020 (HISA) was signed into law on December 27, 2020 as part of a year-end government funding and COVID-19 relief package. Originally introduced 6 years ago, the objective of the bill is to increase track safety by implementing long-overdue uniform national standards for anti-doping, and medication oversight for Thoroughbred racing.
Until now, Thoroughbred racing in the U.S. has been regulated by a patchwork of 38 individual State Racing Commissions, with conflicting standards and enforcement of rules and regulations with respect to both anti-doping and safety standards. The HISA would effectively eliminate these discrepancies by implementing uniform rules and penalties across the nation. The HISA also provides language to ensure that U.S. horse slaughter plants remain closed and to enforce the Horse Protection Act to prevent and punish horse soring.
To achieve this, the HISA will create the “Horseracing Integrity and Safety Authority” — a private, independent self-regulatory non-profit governing body — that will be funded by the horseracing industry, and be responsible for developing and enforcing both an anti-doping and medication program as well as a racetrack safety program.
A Board of Directors will govern the Authority consisting of nine members, five of whom will be independent from the racing industry, and four experts from various sectors of the industry (i.e. owners and breeders, trainers, racetracks, veterinarians, State racing commissions, and jockeys). Additionally, the Federal Trade Commission (FTC) will oversee a rule-making process that will enact and approve the medication control and safety programs to be enforced by the Authority. Once the provisions have been established, an agreement with the U.S. Anti-Doping Agency will enable enforcement of the program using the same approach to other sports under its auspices.
The doping of racehorses has been a subject under Congressional scrutiny for 5 years, and much longer within the racing industry, bettors and gamers, and the general public as they are witness to hundreds of horses dying on the track every year. Currently, the system of state-based control is fraught with inadequate and inconsistent regulations on medications, testing policies and credibility of the regulators.
As a result, there has been far-reaching support for the bill by numerous players in the racing industry including the Coalition for Horse Racing Integrity, which represents a diverse group of racing and animal welfare organizations, as well as a legion of racetracks and racing organizations.
It is indeed time for meaningful change. At present, horseracing is seen as a rogue industry with violators well-versed in doping methods, gaps in compliance, the relative inability to catch the abusers and little to no repercussions if caught. The future of horseracing in is in peril and the HISA could be the answer to that threat. Will it?
So what is the problem?
No surprise that it didn’t take long for a lawsuit to emerge from the fray given the racing industry’s track record of doping and cheating as a means to achieve success. Long-time opponents of the HISA, which will transfer the oversight of the racing industry’s medication and drug testing rules from state regulation to the Authority under the Federal Trade commission by 2022, have elected to move their grievances to Federal courts.
On March 15, 2021 The National Horsemen’s Benevolent and Protective Association (HBPA), and eleven state affiliates, filed a Federal lawsuit attempting to prevent the HISA from being implemented. These include HBPA state affiliates in Arizona, Arkansas, Indiana, Illinois, Louisiana, Nebraska, Oklahoma, Oregon, Pennsylvania, Washington, and West Virginia.
“The lawsuit, which was filed by the Liberty Justice Center, in the U.S. District Court for the Northern District of Texas, alleges that the federal Horseracing Integrity and Safety Authority is illegal because it delegates legislative authority to a private organization and private individuals.”
“Under the private nondelegation doctrine, granting regulatory authority to a private entity violates Article I, Section 1 of the United States Constitution, which states that, ‘All legislative Powers herein granted shall be vested in a Congress of the United States.’ “
So, in essence, they are saying that it is unconstitutional for anyone other than the Federal government to create rules and regulations at the national level to ensure a working environment that is both safe for the horses and fair to the betting public. This is despite the fact that the Authority will seek to enter an agreement with the United States Anti-Doping Agency (USADA) to serve as its enforcement agency and the Free Trade Commission’s oversight in the rule-making process that will enact and approve the medication control and safety programs. More specifically, it appears that they want to have complete control of their own drug and penalty enforcement so that they can continue down the same path that has all but destroyed their image and shattered any dignity they once had.
Regardless, those who support the HISA welcome the scrutiny of the court and have confidence that it is constitutionally sound and legal, as it is modeled specifically after other established law.
The Jockey Club states:
“It’s a shame that the National HPBA has chosen this expensive and time-consuming path, but it is consistent with their well-known pattern of conduct that has served to block or water down needed reforms that the vast majority of the equine industry and animal welfare organizations support”.
Predictably, it isn’t just the HBPA that is aggrieved of the HISA and its implications. On April 16, 2021, The United States Trotting Association (USTA) chose to join an upcoming federal lawsuit challenging the constitutionality and legality of the HISA, in particular whether or not it violates the Constitution’s non-delegation doctrine and anti-commandeering principle.
This federal lawsuit was filed on April 26, by the State of Oklahoma, the USTA, Hanover Shoe Farms, the State of West Virginia and others, in the Eastern Division of Kentucky U.S. District Court. Other plaintiffs in the complaint are the Oklahoma Horse Racing Commission, West Virginia Racing Commission, Oklahoma Quarter Horse Racing Association and three Oklahoma racetracks – Remington Park, Will Rogers Downs and Fair Meadows.
Furthermore, it appears that other states are considering joining this assemblage of disgruntled horse organizations. To be clear, there is no dearth of exasperated industry insiders who have protested one way or another since the bill was first introduced in 2015.
Why the controversy? The Claims.
True to form, there is the usual outcry about the elimination of furosemide (Lasix) on race day in two-year-olds and Stakes Thoroughbreds for the first three years, and ultimately all Thoroughbreds from that point forward. This is nothing new — the Lasix debate has gone on for eternity. Additionally, the cost of funding Federal regulation is a point of contention since some, or all of it, will be passed down to the State level — this unclear at the moment because much is not decided at this point in time.
Likewise, there will be a duplicate system of review and enforcement of alleged medication and safety violations that will generate additional expense. Although there will be a shift in power to the “Authority”, state racing commissions will still work with the Authority and the USADA to enforce anti-doping regulations at the State level, along with their other duties such as overseeing licensing, racing rules and so on. However, the critical focus of the lawsuits alleges that the HISA’s delegation of responsibility to the “Authority” is unconstitutional because it violates the “non-delegation doctrine” which prohibits Congress from granting regulatory authority to private entities.
The “non-delegation doctrine” is simply the constitutional principle that Congress can’t give (“delegate”) too much lawmaking power to the executive branch. But how much is “too much”?
This works conjointly with the contention that “FTC oversight cannot overcome the constitutional deficiencies because the oversight is purely ministerial and without an “intelligible principle” to guide its discretion.”
Basically, this means that if Congress “delegates” legislative powers to another body, it must provide a general provision by which those using these powers have the proper criteria to carry out their duties. This “intelligible principle” could be anything in the “public interest, convenience, or necessity” or considered “ just and reasonable. ”
The plaintiffs claim that the HISA gives the FTC no standards to make a decision as to whether the rules proposed by the Authority are appropriate or not. While being put in such subjective terms indeed gives an agency vast discretion when enacting new rules, in this case it seems those “standards” are well defined in terms of the health and welfare of the horses and the quest to prevent indiscriminate use of illicit drugs to enhance performance. In fact, these “rules” are in place to a limited extent in the current state of Thoroughbred racing, so there is already a structured foundation from which to build more robust rules on.
And yet, in the same breath, “the suit points out that the FTC has the authority to reject or request modification to rules made by the authority but isn’t allowed to draft its own rules and is not involved in enforcement of those rules.” Isn’t that the purpose of the ‘Authority’ , the Anti-Doping and Medication Control Standing committee and the USADA? The FTC still has the power to defeat any motion it sees as controversial.
“Additionally, the nominating committee is tasked with picking the members of the new authority’s boards, rather than the FTC. The nominating committee is comprised of Dr. Jerry Black, Katrina Adams, Leonard Coleman, Jr., Dr. Nancy Cox, Joseph Dunford, Frank Keating, and Kenneth Schanzer. According to the suit, Black is a professor at the Texas Tech University School of Medicine; Adams is a past president of the United States Tennis Association; Coleman is a former president of the National League of Major League Baseball; Cox is dean of the College of Agriculture, Food, and Environment at the University of Kentucky; Dunford is a former chairman of the Joint Chiefs of Staff; Keating is a former Governor of Oklahoma; Schanzer is a former president of NBC Sports.”
“The suit claims that allowing the new authority’s board to be appointed by a private group of individuals is unconstitutional because the U.S. Constitution requires the president, head of a department, or court of law to appoint officers in such circumstances. Not only that, the suit claims, “this private nominating committee was hand-picked by a small group of owners and trainers within the horseracing[sic] industry who supported passage of HISA, over the objections of thousands of owners and trainers, represented by plaintiffs, who will be regulated by HISA.”
Okay, but do these lawsuits have any teeth?
So, clearly, both lawsuits are based principally on the non-delegation doctrine, and the associated “intelligible principle”, which must justify the means. But is this a viable argument?
“Right out of the gate, nondelegation advocates run up against the embarrassing fact that the actual text of the Constitution doesn’t say anything about restricting delegations.”
Those who seek to use this as a justification for their argument, counter this by claiming that Article I of the Constitution, which assigns “all legislative powers herein granted” to Congress, implies that no power should be handed off the Federal agencies. But is this realistic?
The short answer is no.
In reality, legislative delegations are ubiquitous and indispensable in the comprehensive operation of just about every area of policy; air quality, drug testing, business regulation, health care, education and so on. For example, today more than 300 independent and regulatory agencies publish new and proposed rules in the Federal Register every year.
Legislatures have neither the time nor expertise to create every detail of multifaceted government programs. Many laws have sanctioned executives to implement rules governing private conduct without significant direction from Congress. In fact, the Court has not invoked the non-delegation doctrine to invalidate legislation since 1935 — almost 9 decades ago.
Is this any different? Good luck with that.
WHOA . . . . not so fast
It didn’t take long for backlash from Federal attorneys who have demanded that the lawsuit by the HBPA be thrown out of court because the allegations are without merit given that nothing has been established by the regulatory body that has yet to be formally created.
“Neither the Federal Trade Commission (FTC) nor the [HISA] Authority have even proposed rules that they could endeavor to enact. There has been no proposal for rules regarding permissible and impermissible drugs; no proposal for rules regarding racetrack safety; and no proposals for rules regarding enforcement procedures or penalties. . . .There has not even been a rule crafted to govern how the Authority is to ‘propose’ any rules to the FTC—which is all fitting, given that HISA is only four months old.”
Of course, both the HBPA and USTA lawsuits fail to recognize that the bill’s intention was to provide a framework for the FTC, alongside the ‘private, independent, self-regulatory, nonprofit HISA Authority, to enact “future” standards and rules – not to provide details of the criteria within its structure.
The filing continues:—
“Congress established this framework because it concluded that, in the absence of independent national oversight and uniform drug and safety standards, the horseracing industry was failing to adequately protect its participants.”
In other words, the “intelligible principle” — just and reasonable and in the public interest.
The Feds also acknowledge that the reason the regulations will not take effect before July 1, 2022 is for the express purpose of ensuring that the decisions made by the FTC will be done so after careful thought and consideration. As such, at this point in time, it is unknown whether these negotiations will impact the Plaintiffs and hence there are no grounds for a lawsuit based on those complaints, nor can they be subject to judicial review simply because they do not currently exist.
As for the lawsuit’s central claim that the “HISA unlawfully delegates legislative power to the FTC and the private Authority”, as discussed earlier, for decades the Supreme Court has repeatedly denied delegation challenges on the basis that private entities can provide wide-ranging assistance to federal agencies, with the caveat that the Federal agencies retain final decision-making authority and control, as the FTC does here.
At best, the Plaintiffs “might” be subject to rules they are not on board with in the future, but at the moment their complaints are moot. Consequently, the judge was asked to deny the lawsuit, either on the grounds of the alleged lack of subject-matter jurisdiction or, in the alternative, for the HBPA’s supposed failure to state a claim.
Time will tell which side wins out, but odds are the lawsuits will be rejected.
Meanwhile, the Authority nominating committee announced members of its board of directors and standing committees on May 6, 2021. More than 160 nominations from within and outside the racing industry were considered. Those chosen come from diverse professional, geographic, racial and gender backgrounds and form the following sectors of the Horse Racing Integrity and Safety Authority;
- Board of Directors: nine members — five from outside the Thoroughbred industry and four industry representatives.
- Anti-Doping and Medication Control Standing Committee: : four independent members and three industry members
- Racetrack Safety Standing Committee: four independent members and three industry members
The individuals named to the positions with a brief bio, as well as several statements from segments within and outside of the Thoroughbred breeding and racing industry, supporting the HISA and the newly appointed members of the Authority can be found here.
What are the implications of all of this?
There is no question that the horseracing industry is in dire need of reform and needs to pull itself from the crosshairs. Without change it is teetering on the precipice of collapse as evidenced by the ever-growing outrage at dead horses and trainers literally getting away with murder.
Whether the dissidents like it or not, sadly it has come to the point that without a federal agency to take control of the industry, and remove the self-policing that currently exists, it will simply sink further into the abyss. Some have voiced the opinion that this will put Thoroughbred owners out of business. Many would beg to differ. If this is not done at a level outside of the uninformed state regulatory bodies with their grossly inadequate medication control, that will be the death of the industry. The serious flaws of the fragmented state regulatory bodies with no consistency on medication rules and penalties has had ominous consequences for the racing industry.
You can’t have your cake and eat it too. If these horsemen/women’s groups want racing to survive, they simply cannot continue down the same path of destruction. This bill was in the making for 5 years, backed by the Coalition for Horse Racing Integrity along with numerous racetracks and racing organizations in support of Federal legislation.
But the complaints are myriad:
- The bill was passed without proper vetting
- The legislation was ramrodded through
- Congress put well-connected owners in charge of horse racing across the country
- There was no serious debate or discussion about the legality of creating a private group to control horse racing
- There was no Senate scrutiny or oversight – it only got passed by a sneaky, underhanded manipulation of the political system
- The elites pushed a bill through that could not survive on its merits and was “snuck in” using “pork barrel” politics 101
- We don’t need a federal agency
- My job is to take care of the horses, this has nothing to do with that.
- This is not the NBA or NFL
And the list goes on, and on, and on. . . . is any of this legitimate?
While it is true that there are members of the racing community on the Board and the standing committees, they are outnumbered by others independent from the racing industry. Some will ask, “is this fair and ethical”?
- For one thing, the “Authority”, which those who oppose the HISA are calling “industry insiders”, must answer to the FTC and in no way have financial ties to racing — the law went to great lengths to require this.
2. Secondly, an independent nominating committee was tasked to select members of the the Authority’s board and committees on medication and safety.
3. Finally, if outsiders hold all of the power, the board and committee members may lack sufficient racing-specific knowledge. By providing racing-specific knowledge and strategic focus, insiders will ensure that outsiders emphasize strategic issues as well as financial ones. This is commonplace in industry.
“Self-regulation has led to the complete disarray horse racing finds itself in today.” — Jane Allin
That said, it will be imperative that drug testing, penalties and rulings on offences remain at a level independent of the industry’s whim and not careen back to the racing industry. Self-regulation has led to the complete disarray horse racing finds itself in today.
At the moment, the strategy is the USADA that will be responsible for setting up independent test laboratories, so it is out of the hands of the racing industry, just as they do for other sports, while the rulings and subsequent penalties will be decided upon by the committees. Moreover, members of the board of directors and standing committees underwent a comprehensive screening process, and the members of the board of directors and any independent member of a standing committee are subject to HISA’s strict conflict of interest restrictions to ensure the Authority’s independence and integrity.
This all sounds good on paper and the racing industry better set its hopes that it plays out as intended. Because if it doesn’t, it will only prolong the inevitable. And if the lawsuits are successful in thwarting the HISA? Ostensibly, the end will come sooner rather than later. It is only a matter of time. Just like greyhound racing, increased public awareness of the cruelty involved, in addition to competition from other forms of gambling, has and will continue to the nationwide decline of horse racing.
Horse racing has descended into a state of disgrace, corruption, bribery, fraud, illicit and illegal drugs, greed, and lack of ethics. The health and safety of the horse has been brushed aside, violated and swept under the carpet to hide the ugly truth.
“The question is not, Can they reason? nor, Can they talk? but rather, Can they suffer?”
~ Jeremy Bentham