Proposed HISA Rule Change: Emergency Power to Suspend Live Racing?

The opening months of 2019 were still fresh in California lawmakers' minds when they passed a bill that summer giving the California Horse Racing Board (CHRB) emergency authority to suspend racing at a track without the hitherto required 10-day public notice period.

The precipitating event, of course, was the spate of equine fatalities that had covered Santa Anita, and the racing industry in general, under a pall of public condemnation–the exact same kind of scrutiny Churchill Downs has faced these past few weeks, culminating with the announced switch of racing venue to Ellis Park.

As events have unfolded at Churchill Downs, representatives from the Horse Racing Integrity Act (HISA) have made it clear that they could stop the track from exporting their simulcasting signal out of state, if they deemed it necessary.

Here, however, it should also be noted that throughout this period, HISA officials have repeatedly stressed how the agency's actions have been in unison with both Churchill Downs and the Kentucky Horse Racing Commission (KHRC).

But the ability to block the export of a simulcasting signal is not enough, say several non-HBPA affiliated horsemen's groups, including the Thoroughbred Horsemen's Association, the Kentucky Thoroughbred Association (KTA), the Thoroughbred Owners of California, the New York Thoroughbred Horseman's Association, and the Thoroughbred Owners and Breeders Association.

Since the earliest days of the HISA rulemaking process, they have argued for a clear set of rules giving HISA the discretion to completely suspend racing at a facility by removing its accreditation in the event of a safety-related crisis.

“Some of these owner-trainer groups feel so strongly about this issue,” said Chauncey Morris, executive director of the KTA, who stressed that he believes Churchill Downs, the KHRC and HISA have taken the correct steps throughout the past few weeks.

In answer to a series of questions, HISA spokesperson, Mandy Minger, wrote that the federal agency is indeed considering such a rule change.

In background conversations with track officials, however, they've stressed the disruptive nature of such actions, which can have profound economic impacts on a wide swath of stakeholders. Others warn that such powers need clear definition.

Scott Chaney, CHRB executive director, agrees that the threat alone of pulling a track's simulcasting signal “is not a complete solution,” but the key question for him is this: What criteria would HISA use to justify the ability to suspend racing completely at a facility?

“Is it purely fatality based?” he said. “Or is it more response based–like, is the response of the track satisfactory?”

The Proposal

HISA cited Turf Paradise back in January for several safety-related problems like faulty track rails and a subpar racetrack surface maintenance program. Track management ultimately complied, but only after the HISA Authority applied the thumbscrews of a possible simulcasting export block.

In the Turf Paradise situation, therefore, there were clear racetrack safety violations that HISA used as enforcement leverage.

But what happens in a situation where a track experiences a rash of fatalities and there is no clear actionable violation? What if management at that track is not as cooperative with HISA's overtures as Churchill Downs has been? Then add to the mix the growing wingbeat of a national media calling for the sport's swansong.

This is the central conundrum prompting certain horsemen's groups to advocate for HISA to wield such discretionary powers–something the groups did during the first round of the rule-making process, submitting comments calling for the HISA Authority to be given “residual power to suspend accreditation and suspend racing in case of an unusual cluster of fatalities or other safety emergency.”

They added back then that “unambiguous language is necessary to provide that the Authority and its Safety Committee can actively monitor accreditation requirements during live racing, suspend accreditation immediately in order to ensure the safety of horse and rider, and suspend racing until corrective measures are undertaken.”

Those initial proposals were submitted at the start of 2022. According to Morris, the same groups are in the process of resubmitting similar commentary in the latest window to tweak HISA's rule. And HISA, it appears, is listening.

According to Minger, HISA's current rules bar them from prohibiting “Covered Horseraces at a Racetrack” without an accreditation suspension or a finding of a racetrack safety violation.

However, “for circumstances where that is not the case, HISA is closely examining and considering a new safety rule traditionally utilized by State Racing Commissions to summarily suspend Covered Horseraces at a Racetrack when circumstances present an immediate danger to the health, safety, or welfare of Covered Persons, Covered Horses, and Riders, or are not in the best interests of racing,” wrote Minger.

A formal process to remove a track's accreditation, however, still appears to leave a window open for live racing to continue–as in Texas, where the tracks there are not HISA accredited but continue to operate without the ability to export their simulcasting signal out of state.

Uniquely for Texas, the lack of an exported simulcasting signal has not dramatically affected the state's purse fund, buttressed as it is with monies from a sales tax on equine products. Purses in many other states, however, are funded heavily through wagering.

Without the ability to export a signal, the hypothetical question becomes: How long could a track operate without these monies coming in?

Specific Criteria

The CHRB rule giving it emergency discretion to suspend a track's license is prescriptive about the necessary steps the commission must take to execute that power.

The board must give track management at least 24 hours' notice of the hearing on the petition to suspend the license, which can be filed by the executive director or by the equine medical director, for example. The board also has five days following the petition's filing to make a decision on the suspension or license restriction order, among other requirements.

What's missing, however, is a clear set of detailed criteria delineating what set of circumstances warrant the CHRB's petition to be filed in the first place, and that's a big problem, said Chaney.

“From a regulatory standpoint, pressure and notoriety alone should not be the criteria,” warned Chaney.

Which leads to perhaps the thorniest aspect of the proposed rule change–what are the agreed-upon parameters so this regulatory trip wire isn't used capriciously?

The term multifactorial is routinely bandied around to explain fatal musculoskeletal injuries.

In a cluster of deaths, is there commonality in the way the horses were conditioned and medicated, for example? Are there glaring holes in the pre-race veterinary checks? Is the out-of-competition testing program rigorous enough? Has the racing office unduly pressured trainers to enter? Is the track surface at fault? What about their breeding, and the way they were raised?

This Iliad-like search for answers makes transparency of a baseline set of information vital in the quest to identify preventable fatalities, said Chaney.

“But since all reporting is not equal, it's hard to have an open and honest conversation about that,” he added.

Indeed, in recent weeks Churchill Downs has faced criticism over its decision not to publicly share equine fatality data through the Equine Injury Database. And it's unclear when HISA–which is mandated to publicly share this data uniformly–will step up to the task.

“HISA's accreditation team has been working with tracks to help them meet their internal review and reporting obligations. We're also in the process of developing internal systems so that reliable catastrophic injury data can be aggregated and made available to the public on an ongoing basis. Until such time as reporting and tracking systems are in place nationwide, The Jockey Club's Equine Injury Database continues to be the most reliable source for the type of information you requested,” wrote Minger.

But this particular data-set is only one part of the industry's current black-hole riddled nebula of unreported and hidden information. The sooner the industry at large begins sharing relevant data in a timely manner–everything from detailed vet's list info to stewards' reports–the better, said Chaney.

“Regression to the mean is just not good enough,” he said. “When it comes to safety, every track, every regulatory authority, has to do everything they can.”

Cautionary Tales

Attorney Drew Cuoto has long been critical of tracks unilaterally suspending individuals from their facilities, describing instances where he believes the horsemen have not been afforded the necessary due process rights of hearing and appeal.

Couto, it should be noted, has represented Jerry Hollendorfer in ongoing litigation stemming from The Stronach Group's 2019 decision to bar the trainer from the company's facilities.

And so perhaps surprisingly, Couto, one of the founding members of the Thoroughbred Owners of California, agrees with the fundamental premise that HISA is given these additional discretionary powers.

But before actually wielding that cudgel, the Authority should ensure that it has taken reasonable measures to get to the bottom of the problem, he said, mirroring Chaney's comments.

“Every situation is unique,” Couto said. “But in my many years of experience, in the event of these unusual clusters, typically there are issues related with the track itself.”

As such, Couto believes that such a scenario should immediately prompt HISA to bring in outside experts to evaluate the available information, like failure analysts and composite material science experts to evaluate track surface measurements.

Here it should be noted that one of the things HISA has done at Churchill Downs is bring in an equine forensics specialist to conduct an independent review of the necropsies.

This is especially needed at those facilities where track operators might not have the necessary training and experience to understand the complex set of factors behind fatality clusters, said Couto. He points out how–unlike many positions in racing like trainers and veterinarians–individuals filling certain racetrack operational roles aren't tested for proficiency through a formal licensing process.

Right now, “suspensions largely serve PR objectives over reasoned analysis,” he said. “And so, what I hope HISA can do is not take the current scientific consensus as gospel, but to see it as a starting point in the scientific process.”

As Morris sees it, however, HISA is uniquely placed to cut through the red-tape of competing interests to police the “triad” of American racing–the racetracks, the horseman and racing commissions–equally.

“In past situations, it can turn into a blame game between the racetrack, the horsemen and a state racing commission that feels it may or may not have the power or jurisdiction to step in,” said Morris.

“But HISA is an independent regulator,” he added. “That is something that was very, very appealing to our collective group.”