HISA's Anti-Doping Program Suspended 30 Days

Calling HISA's immediate March 27 implementation of its Anti-Doping Medical Control Program after receiving Federal Trade Commission approval a violation of the Administrative Procedure Act, a federal judge suspended the anti-doping program 30 days until May 1.

James Hendrix, United States District Court Judge for the Northern District of Texas, Lubbock Division, issued his ruling late in the afternoon on March 31 related to an ongoing lawsuit challenging HISA by the National Horsemen's Benevolent and Protective Association, the state of Texas, the Texas Racing Commission, and other parties.

"When an agency issues a substantive rule—the type of rule that controls our behavior—it must ordinarily wait 30 days between when the final rule is issued and when it takes effect," Hendrix wrote. "This ensures that regulated parties have the time to challenge the rule's validity or bring themselves into compliance. But the anti-doping rule took effect the same day that it was published as final.  As a result, the rule issued (is) in violation of the APA, so the plaintiffs—and everyone else—will get their 30 days."

While not as damaging as a court ruling late last year from the U.S. Fifth Circuit Court of Appeals, one that declared HISA's enabling legislation unconstitutional and that led legislators to pass clarifying language this winter meant to strengthen its legality with more FTC oversight over HISA, Friday's ruling stalls the ADMC Program. 

"We'll hand the keys back to the states and be ready to take over again on May 1," HISA CEO Lisa Lazarus said.

"The samples will be prosecuted under state rules if there is a positive," she later added. "We will obviously provide all of the administrative and operational assistance to the state racing commissions that we can with respect to the court's order."

Any positive in the next 30 days will not be subject to AMDC rules, and any adjudications started in that period will continue through the state process, HISA officials said.

The National HBPA requested relief from the court earlier this week, arguing that horsemen could suffer irreparable harm should the ADMC rules become effective immediately.

"The ADMC rule plainly affects individual rights and obligations because it, among other things, requires covered persons to submit to surprise inspection of eligible facilities and to ensure that no prohibited substances are present in a covered horse, as well as prescribing punishments with significant financial implications," Hendrix wrote.

"We are very pleased that the National HBPA has defeated HISA in the courts yet again," National HBPA CEO Eric Hamelback said. "It was reckless and irresponsible of the Authority and the FTC to rush to implement these brand-new rules this weekend. Horsemen need time, and we were glad to stand for them once again. The Fifth Circuit Court of Appeals ruled that HISA was unconstitutional in our lawsuit before, and we expect they will do so again."

Lazarus, speaking with media in a video conference a couple of hours after the ruling was issued, said that while she was disappointed in the decision, she and other HISA officials have opted not to appeal the 30-day delay.

She called the ruling having "to do with the FTC process; it's not really related to HISA."

"Ultimately we are here to serve the industry and I think that just creates more chaos so at this point we know it's 30 days and we can plan for that and communicate that so we don't have this back and forth," she said. 

Friday's court decision did not address the constitutionality of HISA after the legislative changes to the act's language.

The first test samples through the ADMC Program began on Monday, though four states did not participate this week. Louisiana and West Virginia did not due to a preliminary injunction issued by Judge Terry Doughty of the U.S. District Court for the Western District of Louisiana last year, and Texas and Nebraska elected not to simulcast out-of-state rather than fall under HISA oversight.

The ADMC collection process ran smoothly, she said, with the collection of more than 700 tests.

"Should there be any positive results we are going to turn them back to the states and they will have to make a legal judgment as to what to do with those results," Lazarus said. "I presume they will prosecute them but how they handle those legal commissions is up to the states."

While the ADMC Program is on hold until May 1, HISA's Racetrack Safety Program—which governs the use of the riding crop and horseshoes—remains in effect, Lazarus said.

Lazarus said she is treating the Friday ruling as a "bump in the road." "We are staying positive," she added.