The legal challenges facing the Horseracing Safety and Integrity Act are mounting after a group consisting of two states, its racing commissions, two equine associations and a breeding farm filed a federal lawsuit alleging that the law is unconstitutional.
The lawsuit, which largely mirrors a challenge filed in March by the National Horseman’s Benevolent and Protective Association (HBPA) and 11 of its state chapters, claims that HISA illegally delegates legislative authority to a private group that is not accountable to a government agency. The U.S. Anti-Doping Agency (USADA), a private organization, is enforcing the drug control program. The law, which was passed as part of the Dec. 21, 2020, COVID-19 stimulus bill, was a response from federal lawmakers after a series of doping scandals and equine racetrack fatalities. The lawsuit also questions how the law is funded.
“After creating this vast new federal regulatory structure and delegating it to a private corporation, Congress disclaimed any responsibility for funding the Authority itself,” according to the lawsuit that was filed in the U.S. District Court for the Eastern Division of Kentucky. “Instead, it forced the funding responsibility onto the states, imposing on them the choice of either funding the Authority with state funds or, if a state refuses, collecting fees directly from racing industry participants in that state while punishing the state by banning it from collecting similar taxes or fees itself.”
The lawsuit was filed by the state of Oklahoma; the Oklahoma Racing Commission; the state of West Virginia; the West Virginia Racing Commission; the United States Trotting Association (USTA); the Oklahoma Quarter Horse Racing Association; Hanover Shoe Farms, Tulsa County Public Facilities Authority, which owns Fair Meadows Racing and Sports Bar; Global Gaming, which owns Remington Park; and Will Rogers Downs. The defendants are the United States government, the Horseracing Integrity and Safety Authority (HISA), the Federal Trade Commission (FTC), and individuals working for HISA and FTC.
The law allows the Authority to draft governmental rules on equine medication and safety; impose fees to horse owners and trainers to finance operations; determine rule violations, impose penalties and sanctions; issue subpoenas and investigate alleged violations, and launch civil actions in federal court to enforce rules. Although the Federal Trade Commission has the authority to reject or request the modification of rules established by the Authority, it cannot draft rules or enforce rules.
“If allowed to go into effect, this act will harm states like Oklahoma that have a robust equestrian industry,” says Mike Hunter, Oklahoma attorney general. “Additionally, the HISA disregards foundational law within the Constitution, including the 10th Amendment. Congress cannot force a state legislature to either appropriate dollars for a private corporation, like the Horseracing Integrity and Safety Authority, or be banned from passing legislation imposing certain taxes or fees. That puts Congress in control of state branches of government, which violates the law. Oklahoma already has government oversight in place through the Oklahoma Horse Racing Commission, which does what the federal government seeks to take over and give to a private corporation completely unaccountable to Oklahoma voters.”
The USTA has been vocal about its concerns surrounding HISA while the legislation was making its way through Congress. It now is spearheading a draft bill with the National Association of Racetrack Veterinarians, the National Horsemen’s Benevolent and Protective Association and legal counsel called the Racehorse Health and Safety Act. Russell Williams, USTA president and Hanover Shoe Farms president and CEO, touts the draft as constitutional and will succeed in protecting the health and welfare of the horse for all racing breeds.
“This is the bill that should have been introduced in Congress years ago, but the Jockey Club had other ideas,” he says. “The American Quarter Horse Association, the Association of Racing Commissioners International, the state racing commissions, and even the recently-formed harness racing industry round table will be studying this legislation in order to have a legal and appropriate regulatory plan ready to introduce as legislation once HISA has been declared unconstitutional and is out of the way.”
The Jockey Club has been an outspoken proponent of HISA and while it has not commented on the latest lawsuit, it criticized HPBA’s efforts.
“We are confident that the law is constitutionally sound and legal, as it is patterned precisely after other long-standing law,” according to the statement. “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.”
On the same day that Senate Majority Leader Mitch McConnell, R-Ky., and three co-sponsors introduced the Horseracing Integrity and Safety Act, the House Energy and Commerce Committee voted, 46-5, to send H.R. 1754 to the full House.
The Horseracing Integrity and Safety Act has “several serious constitutional flaws,” according to Russell Williams, president of the United States Trotting Association, citing research by Gibson Dunn. The law firm successfully persuaded the U.S. Supreme Court to strike down a federal law prohibiting states from permitting and regulating sports betting.
The National Horsemen’s Benevolent and Protective Association (HBPA) and its affiliates in Arizona, Arkansas, Indiana, Illinois, Louisiana, Nebraska, Oklahoma, Oregon, Pennsylvania, Washington and West Virginia, want HISA declared unconstitutional, the implementation of the law halted and monetary damages.