HBPA: HISA Still 'Law of the Land' Except in Two States

Two working days after the Horseracing Integrity and Safety Act was declared unconstitutional by the United States Fifth Circuit Court of Appeals, a memorandum circulated to Kentucky horsemen prepared for the National Horsemen's Benevolent and Protective Association says HISA is still "the law of the land" with two state exceptions: Louisiana and West Virginia.

The memorandum was prepared by National HBPA CEO Eric Hamelback and general counsel Peter Ecabert following a Zoom meeting Nov. 21 of attorneys involved in the legal dispute.

"It is important that we convey the message that we believe horsemen currently racing should continue to comply with HISA regulations as HISA is currently the law of the land," the memo states. "The only exceptions to that are the states of West Virginia and Louisiana. However, with that said, we encourage affiliates to strongly request your racing commission to get an opinion from your State's Attorney General. Having that opinion may provide an exception as well."

Noting it is likely the Fifth Circuit's decision won't become final until "sometime in mid-January 2023," the memo also concedes the Federal Trade Commission or the Horseracing Integrity and Safety Authority will likely take actions asking for reconsideration of the decision or appeal the decision, which could slow its finality.

"This type of action would have the effect of delaying the time when HISA is shut down. The bottom line is during this time period, HISA remains the law and we must respect it as such even though we have a solid opinion from the Court that HISA is unconstitutional, unless your State Racing Commission and State Attorney General determine HISA's validity in the particular jurisdiction," the memo says.

Established when the Horseracing Integrity and Safety Act was signed into federal law in 2020, the federal HISA program is responsible for drafting and enforcing uniform safety and integrity rules in U.S. Thoroughbred racing, having begun its Racetrack Safety Program in July. Its Anti-Doping and Medication Control Program is set to take effect at the start of 2023.

The case leading to the Fifth Circuit decision invalidating HISA originated in Texas. As to why Louisiana and West Virginia are currently exempt from HISA regulations and enforcement, the memo cites a July 26 preliminary injunction entered in U.S. District Court for the Western District of Louisiana after Louisiana, West Virginia, the Jockeys' Guild, and others sued HISA and the FTC.

The injunction, which ordered a stoppage of HISA and the FTC implementing racetrack safety rules, enforcement rules, and assessment methodology rules in Louisiana and West Virginia, was pared back in scope in a stay order issued by the Fifth Circuit pending appeal of District Court Judge Terry A. Doughty's ruling. But with the Fifth Circuit declaring HISA facially unconstitutional Nov. 18, the injunction is back in full force and effect.

Doughty's ruling was not based on constitutional grounds. Instead, Doughty took issue with HISA's compliance with the federal Administrative Procedures Act and what he described as excesses in its rule-making.

Because the Jockeys' Guild was also a party to that case, and based on an ambiguity in the wording of the preliminary injunction, Doughty was asked by attorneys before the stay was imposed to decide whether the injunction applies to Jockeys' Guild members outside of Louisiana and West Virginia. That issue is now back on his plate.

The HBPA memo says a number of HBPA affiliates, including the Kentucky HPBA, have moved to intervene in the case and that "it is likely this matter will be heard in December 2022 with a decision before end of year."

The memo concludes that the case "could have nationwide effect in shutting down much of HISA, and they would be enjoined from enforcing much of the safety rules currently in effect," but it does not address how non-HISA rules would be applied to Jockeys' Guild members and HISA rules applied to non-members who ride in the same race.

"We understand it's confusing, and the cross-over in the cases makes it more complicated," the memo says.