Lazarus Warns HBPA's Anti-HISA Legal Strategy Would 'Unleash Total Disorder'

Horseracing and Safety Integrity Authority chief executive Lisa Lazarus on Monday sent a letter to Alan Foreman, the chairman of the Thoroughbred Horsemen's Association (THA), warning THA members of “potentially significant disruptions” to the industry based on the HISA Authority's interpretation of legal strategies being pursued by the Horsemen's Benevolent and Protective Association (HBPA).

With an application by the Authority pending in the United States Supreme Court that would stay a Horseracing and Safety Integrity Act unconstitutionality mandate that has yet to be released by the U.S. Fifth Circuit Court of Appeals, Lazarus led her Oct. 7 letter by acknowledging the THA's efforts to work with the Authority to improve HISA, “instead of draining industry resources and dollars that would have gone directly in horsemen's pockets to fight it.”

Lazarus wrote that the Authority “has been defending itself against claims of unconstitutionality in multiple courts, as the HBPA and others have filed suit after suit in an effort to find a court sympathetic to their arguments. That litigation has forced [the Authority] to spend millions of industry dollars to defend the programs Congress mandated.

“Every court has uniformly upheld the constitutionality of HISA's Federal Trade Commission (FTC)-approved rules, but the HBPA's strategy has led to a split among Circuit courts across the

country on the enforcement of those rules,” Lazarus continued. “The Sixth and Eighth Circuit courts have ruled in HISA's favor while the Fifth Circuit (covering only the racing states of Texas and Louisiana) has ruled in favor of the HBPA.”

A possible decision by the Supreme Court has long been speculated as the final destiny for the 3 1/2-year legal odyssey in which the national office of the HBPA and 12 of its affiliates are trying to nullify HISA as an allegedly unconstitutional law.

But before the case gets on the Supreme Court docket, Lazarus wrote that, based on her interpretation of a recent brief filed by the HBPA with the Supreme Court, the HBPA “is planning to ask the federal district court in the Fifth Circuit to unleash total disorder by releasing every individual HBPA member nationwide-not just in Louisiana and Texas-from HISA's enforcement authority.”

Lazarus's letter referenced Eric Hamelback, the chief executive officer of the national HBPA, no fewer than seven times while articulating what Lazarus believed to be the HBPA's legal strategy.

TDN attempted to reach Hamelback to get his side of the story and to clarify whether or not Lazarus was accurate in her opinions about the HBPA's legal strategy, but those efforts did not yield an on-the-record response prior to deadline for this story.

Lazarus explained her opinion this way: “To put it simply, Mr. Hamelback wants to create a system in which his members (HBPA only) can do whatever they want while THA members and all other horsemen not party to his lawsuit will continue to operate under HISA's safety and ADMC rules. That means [THA-member] horses will continue to be tested for prohibited substances while other horses competing against them will have no enforceable restrictions on performance-enhancing drugs and/or medications.”

After reviewing Lazarus's letter, TDN spoke to John Roach, the Authority's legal counsel, to ask why the Authority chose now to emphasize the points that it did, and to ask why Hamelback, an individual, was more the focus of the letter than his organization.

“Someone's accountable for this legal strategy,” Roach said in a phone interview. “And it seems to me that the letter makes clear that the HBPA and its leadership [are] accountable for the choices that they've made and what they say that they're going to do. I mean, this is what they've said [in legal filings] they're going to do at the Supreme Court.”

In her letter, Lazarus wrote only in general terms about how the Authority would respond in court against the HBPA's perceived legal strategy, noting that “HISA will vigorously defend the industry” while remaining “unwavering in our commitment to protect horses, riders, and the future of racing.”

TDN asked Roach if he could provide specifics on how the Authority would approach the potential showdown in the Supreme Court.

“Obviously we have the stay motion pending at the Supreme Court,” Roach said. “So if that stay motion is granted, that will protect the status quo until the Supreme Court decides [if it will take the overall case]. So that's the first step.

“And then the second step, if we [don't] get the stay at the Supreme Court, presumably, [the HBPA] will go and execute on their plan that they [outlined] in their Supreme Court briefing, and go to the federal district court in [Texas, where the lawsuit originated]. At that point, we'll obviously have something to say about the relief that they're seeking,” Roach said.

“It's kind of hard to imagine that they believe that their members should not follow HISA in the very states that the Sixth Circuit and the Eighth Circuit ruled that HISA was completely constitutional.” Roach said. “But they say in their brief that that's what they're going to do,”

Roach told TDN he wanted to make it clear that the Authority took steps to work with the HBPA on streamlining the path to the Supreme Court, but that the HBPA allegedly did not want to work collectively on that concept.

“It's really important for everyone to know that we went to the HBPA and said, 'Look, it's in everyone's interest to get this case to the Supreme Court as fast as possible; everybody believes that the Supreme Court is going to take the case. Let's not get into all this procedural jousting [over the Fifth Circuit stay]. Let's just get the case to the Supreme Court [and] get a decision as soon as possible so that the industry has certainty,'” Roach said.

“They rejected us,” Roach said.

“Then we said, 'Hey, how about we just let the Fifth Circuit decision apply to the Fifth Circuit, which means Louisiana would [operate under a HISA rules stay from a separate court case] the way it's doing now until the Supreme Court rules, and Texas could start exporting their [simulcast] signal. Everything else would remain the status quo; we'll let the Supreme Court decide.'” Roach said.

“That was rejected as well,” Roach added.

“And so, the legitimate question is, 'What is the end game here?'” Roach said.

“We're set to have total chaos and a three-ring circus. As the letter points out, how are we, as an industry, going to run horse races when some horses are subject to one set of rules and some horses are not subject to any rules in the same race?” Roach said.

(Note: After the initial version of this story was first published, an HBPA spokesperson emailed the following statement attributed to national HBPA board member Bill Walmsley.)

“The letter from Lisa Lazarus is unprofessional, unnecessary, and repeatedly libels Eric Hamelback. The National HBPA's board of directors-not Eric Hamelback-has determined our legal course. There was no need to personalize a long-standing and good-faith disagreement about what's best for the industry. Lisa chose to go to the gutter with cheap shots more appropriate to a campaign season attack ad than someone who wants to lead the horseracing industry. HBPA won't take a back seat to anyone in our defense of horsemen, and we won't back down in the vigorous defense of our members, our industry, and our rights. A nastygram from Lisa is not going to move us one inch off our target: a Supreme Court ruling that strikes down HISA. We're lucky to have Eric leading our association, and anyone who also wants to be a leader in horse racing should stop tearing people down and start building our industry up. Ms. Lazarus's comments should be condemned by every horseman or woman.”