Another Lawsuit Filed by a State HBPA Against HISA, FTC

Another lawsuit challenging the legality of the Horseracing Integrity and Safety Authority has been filed in federal court by affiliates of the Horsemen's Benevolent and Protective Association, a regular opponent of HISA.

On April 6, Bill Walmsley, Jon Moss, and the Iowa HBPA filed suit against the Federal Trade Commission to stop HISA, which they consider to be illegally constituted. Walmsley is president of the Arkansas HBPA and Moss is executive director of the Iowa HBPA.

HISA, created by Congress to establish and enforce national rules and oversight of Thoroughbred racing, falls under the oversight of the FTC. Its Racetrack Safety Program is currently being enforced in all but four states, and its Anti-Doping and Medication Control Program began for a period of days in March before being suspended for 30 days by a federal judge. It is scheduled to resume May 1.

Both HISA and the HBPA have scored victories in court over the past year, but the legality of HISA has remained hotly contested since a United States Fifth Circuit Court of Appeals decision last year declared HISA's enabling legislation unconstitutional. That led Congress to pass clarifying language this winter meant to strengthen its legal standing with more FTC oversight over HISA.

The lawsuit filed Thursday argues that the "Federal Trade Commission's ostensible oversight serves as a mere mirage...FTC Commissioners can't initiate their own rulemaking or oversee the Authority's enforcement actions or appoint and remove Board members or control the Authority's funding."

The lawsuit further claims that Congress cannot outsource regulatory authority to a private organization such as HISA. The Plantiffs argue that regulators must be accountable to the people, through their representatives in government, with U.S. laws requiring that officers of the United States be appointed by the president or head of an executive department.

Their lawsuit further alleges HISA violates the principle of nondelegation, the appointments clause, due process, and Article III of the Constitution by assuming judicial powers to adjudicate disputes and impose fines.

"The Authority creates, enforces, and adjudicates horse racing rules—with hardly any limit. ...Any noncompliance comes with a lawsuit—filed by the Authority itself. And—to top it off—its own internal court system decides who wins," the HBPA complaint states. "The Authority's rules have the force of law. ... In short, a private, unelected, and unaccountable body controls a legendary and iconic American industry."

Legal complaints present just one side of the case. A response to the lawsuit has not yet been filed by the FTC and posted online.

"As with other litigation making similar claims, we will vigorously defend our ability to implement HISA's safety and integrity rules," a HISA spokesperson said in a Friday statement.

The case, Bill Walmsley, et. al. v. Federal Trade Commission, was filed in United States District Court for the Eastern District of Arkansas.