HBPA: Negotiations Between HISA And Sales Companies Equate To 'Preferential Treatment' For Breeders

Two days after the Horseracing Integrity and Safety Act (HISA) Authority disclosed at a press conference last week that it had initiated discussions with sales companies in an attempt to bring about voluntary compliance with medication policies throughout the lifetimes of Thoroughbreds, the National Horsemen's Benevolent and Protective Association (NHBPA) went on record with a letter filed in the United States Court of Appeals for the Fifth Circuit alleging that those efforts equate to improper rulemaking by the Authority and “preferential treatment” for breeders.

The purpose of the HISA Authority's Sept. 13 press conference was to go public with a months-in-the-making report on 12 horse deaths at Churchill Downs this past spring, and also for the Authority unveil a wide-ranging “strategic response plan” to predict and halt catastrophes before they occur. According to the report, which also listed numerous other safety proposals, the goal of entering into agreements with Thoroughbred auction houses would be “to more effectively align and coordinate our respective anti-doping and medication control [ADMC] programs.”

The purpose of the NHBPA's Sept. 15 legal filing, by contrast, was to let the court know that as the plaintiffs/appellants in a two-year-old lawsuit that is trying to derail HISA based on alleged constitutional violations, the NHBPA and 12 of its affiliates believed that by entering into such negotiations with sales companies, “the Authority has announced its intention to add another line to the already long list of 20-plus examples of the Authority writing the rules for the industry without going through the rulemaking process.”

The two-page letter written by the NHBPA's attorney, Daniel Suhr, prefaced its legal criticisms of the Authority's discussions with sales companies by first stating that, “The NHBPA Appellants appreciate the policy goal to ensure effective ADMC standards that include breeders: as the advocate for owners of horses, they support measures that ensure full and accurate information from breeders for buyers.

“But as a legal matter, two things are obvious from the announcement,” the NHBPA letter continued. “First, one section of the industry that is included in the scope of the Act is receiving preferential treatment-the breeders get to negotiate their rules through voluntary agreements while other sectors like trainers and racetracks have rules imposed upon them by Authority fiat.

“And second, once again the Authority is engaged in regulatory activity outside the rulemaking process. When the Authority enters into a 'voluntary agreement' with a breeding company, it is not required to publish or publicize the text of that agreement (or provide it if requested through FOIA), receive and consider public comment (including feedback from other affected equine constituencies), or run it by the Federal Trade Commission [FTC],” the NHBPA letter stated.

The allegations by the NHBPA were filed with oral arguments in the highly anticipated Fifth Circuit appeals case coming up soon, on Oct. 4.

A lower federal court already ruled back on May 4 that the rewritten HISA law that went into effect Dec. 29, 2022, is indeed constitutional because it fixes the problems the Fifth Circuit had identified in an earlier version of the law. The NHBPA plaintiffs are arguing for another reversal.

The points of law raised by the NHBPA's Sept. 15 letter, however, won't be considered by the court in their current format.

That's because the letter did not meet the standard for the type of filing that notifies the court of pertinent and significant findings after a party's brief has been filed, according to a docket entry made by the court clerk on Sept. 15. “Therefore, we are taking no action on this letter,” the clerk stated.

If the NHBPA wants its comments on the issue to be considered, the clerk's notation continued,  “A motion seeking leave to file a supplemental brief is required.”

Regardless of its status, the letter was made public within the docket once the court refused to take action on it, and its contents are important to the broader world of horse racing because the objections over the sales company discussions underscore both the ongoing and newly developing rifts between the NHBPA plaintiffs and the HISA and FTC defendants.

A chief point of contention between the two parties is that the Authority has stated that it will negotiate (rather than propose and implement) ADMC rules upon sales companies because its interpretation of the law is that some young horses sold as auction aren't yet “covered horses” under HISA.

Speaking at the Sept. 13 press conference, Lisa Lazarus, HISA's chief executive officer, explained that “a horse becomes a HISA [covered] horse after it's had its first public workout, first timed workout. So some of the 2-year-old sales would certainly fall under HISA's purview. The weanlings and yearlings wouldn't.”

But, Lazarus added last week, “I think we're at the point where if HISA leads the way that we should, and the way that we intend to, that we'll be able to motivate the industry to come under one kind of comprehensive, understandable, kind of ADMC approach.”

The NHBPA, on the other hand, wrote in a footnote to its Sept. 15 letter that under its reading of HISA, it believes breeders do qualify as “covered persons,” and that breeders as a group are included “among equine constituencies.” Thus, the plaintiffs' argument goes, it's allegedly not fair for one sector of covered persons to have a say in negotiating rules while other covered persons don't.

Asked on Sept. 18 if the HISA Authority would like to comment on the NHBPA's assertions in the letter, an Authority spokesperson wrote in an email that, “The NHBPA overlooks the fact that Congress decided that Thoroughbred horses are not covered horses under the Act until their 'first timed and reported workout.' Therefore, it is necessary for the sales companies to voluntarily agree so that we could effectively align and coordinate our respective ADMC programs throughout the lifetime of a horse.”