Filing Calls for Dismissal of Lawsuit Opposing HISA

Making an argument that both outlined the legal standing of the Horseracing Integrity and Safety Act and the need for the creation of an independent board under the Federal Trade Commission that will oversee the sport's anti-doping, medication, and drug testing, an Aug. 16 filing asks a federal court to dismiss a lawsuit that questions the constitutionality of the new approach.

The motion to dismiss was filed Monday in the United States District Court for the Eastern District of Kentucky, Lexington Division, on behalf of board members of the Horseracing Integrity and Safety Authority and other defendants in the lawsuit. Filed in late April, the suit that contends HISA is unconstitutional is led by the United States Trotting Association, state regulators in Louisiana, Oklahoma, and West Virginia, as well as tracks Fair Meadows, Remington Park, and Will Rogers Downs.

The 42-page request for dismissal argues that such an authority is constitutional because it will be subject to review by the FTC.

"The Supreme Court precedent makes clear that private entities may lawfully assist the development and implementation of federal regulation so long as the agency retains final review," it states. "Congress ensured that independent agency role on both the front end and the back end of HISA's regulatory scheme: The FTC evaluates and promulgates, after notice and comment, any proposed standards the Authority submits before it can take legal effect as a rule, and any sanction for a rule violation is subject to two layers of de novo FTC review."

In terms of funding HISA's oversight of racing, the request for dismissal argues that states have options.

"A state can elect to remit from covered persons the fees that the FTC has approved, or the state will be subject to ordinary preemption principles protecting covered persons' right to be free from paying twice for medication-control, anti-doping, and track-safety regulation of the same covered races," it states.

The filing requesting dismissal goes on to outline the need for such oversight.

When this lawsuit opposing HISA was filed, Oklahoma attorney general Mike Hunter said the legislation violates the constitution in a number of ways.

"If allowed to go into effect, this act will harm states like Oklahoma that have a robust equestrian industry," Hunter said. "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 litigation filed in Kentucky is one of two federal cases questioning the constitutionality of HISA. A suit led by the National Horsemen's Benevolent and Protective Association was filed in March in U.S. District Court for the Northern District of Texas. In late April, a similar motion to dismiss was filed in that case.

During The Jockey Club Round Table on Matters Pertaining to Racing Aug. 15, The Jockey Club chairman Stuart Janney III defended the constitutionality of HISA. Beyond offering some legal arguments, he emphasized the need for HISA.

"It's unfathomable to me how anyone in this industry can be opposed to HISA, but some are. They're trying to stop our progress through the courts, yet providing no alternative to the status quo, which we all know isn't working," Janney said. "What is clear is that these folks are not truly concerned about legal due diligence or the requirements of constitutionality. They defend the status quo with lawsuits that are effectively protecting the few bad trainers, veterinarians, and horsemen at the expense of those who are honest. They offer nothing in the alternative other than worn-out notions of state-by-state compacts in defense of the same broken system."