“Because a body of men, holding themselves accountable to nobody,
ought not to be trusted by anybody.”
~Thomas Paine (1791)
We did not anticipate reaching out to you, but we couldn't help reacting to the broadside that your president, James L. Gagliano, directed at the National Horsemen's Benevolent and Protective Association (NHPBA) on May 12 for having the temerity to challenge The Jockey Club's wounded sacred cow, the Horseracing Integrity & Safety Act (HISA). You didn't mention the U.S. Trotting Association (USTA) by name, but there's a clear implication that the USTA is one of those “unrelated, agenda-driven, special interest activist” plaintiffs that you flippantly accuse as trying to “hoodwink” the racing public. How ironic.
Let's set the record straight. First of all, the National HBPA is a plaintiff in only one of the five lawsuits challenging HISA, and the Fifth Circuit Court of Appeals unanimously agreed with their position and ruled HISA unconstitutional. The USTA is party to another lawsuit. Yes, there are lots more of us who stand up for our constitutional rights, including several state Attorneys General who were duly elected by the people of their states to protect their interests. There are 10 states in the case that see the same constitutional issues with HISA that we do.
You claim that HISA wasn't passed “in the middle of the night.” It was. Inserted at the 11th hour as a miniscule part of a 5,593-page omnibus spending bill that included COVID relief funds as its selling point, the bill was signed into law at 11:40 p.m. on the evening of Saturday, Dec. 19, 2020, just 20 minutes before the deadline for shutting down the federal government. This was made possible by a uniquely powerful senator from Louisville. The colossal document, described three days later in The Hill as “a pork-filled cluster filled with anything and everything that has nothing to do with the coronavirus pandemic or relief,” also included money to support gender programs in Pakistan, study a race riot that occurred in Springfield, Ill., in 1908, and develop a statement of policy regarding the succession or reincarnation of the Dalai Lama. We kid you not.
What HISA didn't get, at any stop along its five-year journey, was one minute of floor debate in the House or the Senate. That's right, this industry-changing bill was not debated by either the full House or Senate. Its passage was a result of the type of power play politics and backroom dealings that have, sadly, become the hallmark of The Jockey Club.
We say this because we did, indeed, meet with you on two occasions when you wanted our support. In September 2016, two Jockey Club representatives came to Columbus to “invite” the USTA to be part of what would eventually become HISA. We met again with a Jockey Club executive two months later in Louisville and indicated that we found the described legislation as being a bad fit for harness racing. Count us out, we said, and that was that. Or so we thought. In the spring of 2017, you gave us a courtesy call to say that, “Hey, we're introducing that bill in Washington, D.C. tomorrow, and, unlike our failed 2015 version that was limited to Thoroughbred racing, this one's open to all breeds, and there's a pretty good chance that you're getting pulled in. Welcome aboard!”
As with the harness racing industry, there are significant problems in Thoroughbred racing, but that's your business, not ours. It does puzzle us, however, as to why you dismiss out of hand the opinion of a Thoroughbred organization like the NHBPA, which has almost 30,000 members (and a democratically-elected board) who are the backbone of the industry, in favor of what your elite, private, invitation-only, 130-member club wants. Money talks, apparently, and quite loudly.
For five years, we asked how much HISA would cost. You never provided an answer, and you never asked for any public funding. Now we have a clearer picture – $66 million in assessments for Thoroughbred racing alone that have been pushed down to the states and horsemen. That's how much the Horseracing Integrity & Safety Authority, the privately-held monopoly that was formed as a result of HISA's passage, says it needs to operate in 2023.
Unlike state racing commissions, which are statutorily mandated to conduct their business out in the open, the Authority has no such obligation. Want to know how much the Authority's executives make? So do we, but they're not talking. What was discussed at the last board meeting? Your guess is as good as ours, because no minutes are made available. Want to review an itemized budget? They don't have to show you that. Think you can use the Freedom of Information Act to compel discovery of this information? Sorry, but it doesn't apply to private entities.
One last point about money. We took special notice of Mr. Gagliano's cavalier remark about how the various lawsuits “are driving up the industry's expense.” That's a coded threat to horsemen that if you keep trying to voice your opinion in the Courts, we're going to make you pay. Literally. Because, as with other unidentified assessments to the industry, “the industry” means the rank and file, the people in the trenches. “The industry” means the horsemen.
HISA is, for now, the law of the land, but was going nowhere on Capitol Hill until Thoroughbreds tragically started breaking down and dying at Santa Anita in 2019. We heard over and over how this legislation was needed to make horse racing – excuse us, Thoroughbred horse racing – safer. But it hasn't, and it's quite unlikely that the full implementation of the medication control program, portions of which are already in place at the major racetracks, will have any appreciable effect. For five years (and still today), we asked how HISA would be an improvement. We're still waiting for an answer, and the evidence suggests quite the opposite. As the Authority admitted, Churchill Downs was in “full compliance” with HISA rules and processes during Kentucky Derby week. The recent spate of equine fatalities there is not, as Mr. Gagliano says, “unfortunate.” The casualties are appalling and they keep happening at alarming rates.
HISA failed to prevent seven deaths at Churchill Downs during Derby Week. Another horse broke down and was euthanized on Sunday. That's a fact that none of Mr. Gagliano's bluster can change. HISA is not the solution. It never was, and it never will be. That's why we're working to introduce a federal bill that will better serve racing's needs.
The bottom line? HISA is a terrible fit for harness racing, and one that has been foisted upon the sport by one of those “agenda-driven, special interest, activist” groups about which you, The Jockey Club, have so graciously deigned to warn us.
Namely, yourselves.
To read the May 12 statement from James L. Gagliano, president and chief operating officer, in Support of HISA, click here.
Dan Leary
Director of Marketing and Communications
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