Additional Perspectives on the Horseracing and integrity Act
/Words - Peter J. Sacopulos
As the effective date of July 1, 2022, approached, the issues and inquiries regarding the Horseracing Integrity and Safety Act (HISA) became immediate. These questions include inquiries from racetrack veterinarians as to their obligations for registering and reporting medication and treatment of Thoroughbred horses and from jockeys seeking guidance on whether the new rule regulating the use of the crop is effective between HISA’s start date of July 1, 2022, and the delayed enforcement of the use of the new crop on August 1, 2022. So too have been questions regarding the pending constitutional challenges and legal efforts to enjoin HISA. These issues have received significant attention by way of journal articles, HISA-sponsored “Town Hall Meetings” and national seminars. Conversely, HISA’s impact on those in the Thoroughbred industry outside of the United States have received limited analysis and discussion.
As a practitioner representing licensees before regulators, I have received multiple inquiries from trainers outside the United States as to their obligations and their owners’ obligations relative to HISA. Additionally, I have received questions as to what, if any, impact HISA has regarding simulcast signals from tracks outside of the United States such as Woodbine in Canada.
To comply with HISA, the foreign national trainer must register as a covered person. In fact, compliance with regard to registration and licensing is a three-step process for the foreign national Thoroughbred trainer. First, to comply with HISA, the international trainer is required to register as a covered person pursuant to 15 U.S.C.S. §3054(d). Second, he or she is required to apply for and secure a Thoroughbred trainer’s license from the jurisdiction (state) in which they will enter and race. For example, if the foreign national trainer has a Thoroughbred that will compete in this year’s Breeders’ Cup event, then he or she must have a current valid Thoroughbred trainer’s license issued by the State of Kentucky for the 2022 season. Third, the foreign national trainer must properly register the Thoroughbred horse(s) that he or she will enter and start with both the state and the HISA Authority.
The rules requiring HISA registration are codified at 15 U.S.C.S. §3054(d). Online registration is available at https://www.hisaus.org/registration. Additionally, only days before the effective date, the Authority issued the “HISA Trainer Handbook,” which can be found at https://www.hisaus.org/home#resources.
In registering, the foreign national trainer is responsible for and obligated to fully and completely understand and comply with all HISA requirements. Once properly registered and deemed a “covered person,” the foreign national trainer has certain ongoing obligations. For example, Thoroughbred trainers are required to complete four (4) hours of training annually pursuant to Section 2182(b)(5) of the rules governing the Racetrack Safety Program. Additionally, there are requirements for filing records relative to the medical care and treatment of horses. Also, the licensing and ongoing requirements for covered persons apply to owners of Thoroughbred horses. Therefore, it is recommended that the Thoroughbred trainer who is going through the registration process informs his or her owner of those requirements and sees that the owner(s) are properly registered as covered persons.
The issue of HISA and control of a track’s signal is one that has received discussion and attention. In fact, one racing jurisdiction, the State of Texas, has refused to honor HISA. In response, the HISA Authority is prohibiting Texas tracks from exporting their simulcast signal across state lines. What is clear and defined relative to the HISA Authority’s right to control a simulcast signal is that a state that refuses to recognize and comply with HISA may be placed in a position of having its tracks prohibited from exporting the simulcast signal. Conversely, what has received little or no discussion, is how, if at all, HISA’s rule regarding simulcast signals will affect Canadian or European simulcasting.
For example, it seems clear that HISA has no control or jurisdiction over Woodbine’s simulcast signal since it is outside the jurisdiction of the Authority and the FTC as it is located in Toronto, Ontario, Canada. Less clear, is what, if any, control HISA/the Authority has or may have over Sam Houston Race Park and Lone Star Park (Texas tracks) exporting its signal to Woodlawn. Should the Texas track(s) do so, it could be argued that the signal is being transmitted across state lines and, therefore, subject to HISA regulation. Conversely, it may also be argued that the signal is not “crossing state lines” but rather being transmitted to a foreign jurisdiction and not subject to HISA control or restrictions. The answer is unclear. Equally unclear is whether additional states will adopt the “Texas position” on HISA when HISA announces the “rest of the story”—that being each jurisdiction’s proportional share of the costs for the Anti-Doping and Controlled Medication part of the program. This expense is expected to be a multiple, perhaps many multiples, of each state’s assessed cost for implementing the Racetrack Safety Program.
The passing of the effective date of HISA and the ongoing and repeated modifications and changes, has resulted in additional questions. For example, the new crop rule, covered under Rule 2280 of the Racetrack Safety Program rules, became effective July 1, 2022. However, the riding crop specification rule will not be enforced until August 1, 2022. And, there is ongoing concern including the mandated registration for participation despite the anti-doping and medication rules not being submitted for public comment and approval by the FTC.
Also, there are and continue to be multiple challenges to the legality of HISA. The HBPA, together with twelve (12) of its affiliates, have a pending appeal before the United States Court of Appeals for the Fifth Circuit in New Orleans, Louisiana. That lawsuit challenges the constitutionality of HISA on the basis that Article I, Section I of the United States Constitution, prohibits delegation of legislative authority to a private entity as well as for the reason that HISA violates the Due Process Clause of the United States Constitution. The State of Oklahoma, the Oklahoma Racing Commission, Tulsa County Public Facilities, Global Gaming RP, LLC d/b/a Remington Park, the State of Louisiana, the State of West Virginia, the West Virginia Racing Commission, the Oklahoma Quarter Horse Racing Association, Hanover Shoe Farms and the United States Trotting Association also have an appeal pending before the United States Court of Appeals for the Sixth Circuit in Cincinnati, Ohio. In July, the State of Louisiana, the Louisiana State Racing Commission, the Louisiana HBPA, the Louisiana Thoroughbred Breeders Association, the Jockey’s Guild, Inc., the State of West Virginia, the West Virginia Racing Commission, and several individuals filed an additional (third) challenge to HISA that is pending before the United States District Court. That action seeks not only to find HISA unconstitutional but also seeks injunctive relief in the form of a temporary restraining order. That matter is set for hearing later in the month of July.
The Horseracing Integrity and Safety Act is national federal legislation governing Thoroughbred racing in the United States. The authority and jurisdiction of HISA and its governing agency, the United States Federal Trade Commission, is limited to racetrack safety issues (presently) and anti-doping and medication issues next year in the U.S. However, the effects of HISA will be felt by those in Canada, Europe, and elsewhere outside the U.S. as the 2022 season continues and into the future.