By Sue Finley
The National HBPA has filed a 'motion to supplement the record' to their longstanding case currently before the U.S. Court of Appeals for the Fifth Circuit in which they challenge the lawfulness of the Horseracing Integrity and Safety Authority. This new motion charges that it again shows that HISA, and not the FTC, is actually in charge of horseracing rules, pointing to the new policy governing how Metformin cases were handled.
On Tuesday, June 4, HISA announced that some trainers whose horses had tested positive for Metformin would have their suspensions deferred while HISA sought additional guidance on the drug. Those changes were, by and large, a result of the lobbying of horsemen for HISA to make changes in the way Metformin cases were handled, due to the possibility of environmental contamination. Metformin is a widely prescribed diabetes medication, and in several cases, horsemen had said that it was regularly used by the horses' handlers. The NHBPA concedes this point in the motion.
The new motion reads, “The new guidance document issued June 4, 2024, is a current example in addition to the score of existing examples provided by the NHBPA Appellants…The newest document again demonstrates the NHBPA Appellants' point that HISA, not the FTC, has `the last word' and `final say over horseracing rules.' Though the new policy, announced through a press release, is in response to concerns raised by horsemen, it again represents an exercise of the Authority's self-claimed `enforcement discretion' to rewrite a rule from what the FTC approved to what the Authority now wants.”
The motion goes on to charge that the original Metformin guidance was flawed.
“In this instance, the document is doubly damning because in it the Authority admits it drafted the rule with a dubious scientific basis for the substance's inclusion in the banned substances list, a problem that perhaps would have been avoided if the FTC had exercised more robust initial review than mere `consistency,' i.e., rubber-stamping,” the motion reads.
“The National HBPA filed this motion yesterday opposing HISA's policy change with respect to provisional suspensions and Metformin pending the RMTC's scientific review,” said HISA CEO Lisa Lazarus. “It raises the question of why a horsemen's group would oppose a measure that was proposed for horsemen, by the Horsemen's Advisory Group, of which Dr. Doug Daniels, the NHBPA President, is a member. Instead of helping horsemen understand and comply with the rules, they're expending resources opposing measures that have been requested by, and supported by, the very horsemen they represent.”
HISA and HIWU have always had the ability to amend provisional suspensions under Rule 3247(e), which reads, “HIWU may lift a provisional suspension (if) it considers it appropriate to do so on the specific facets on the case.” They have exercised this ability in the past, such as in the 2023 case of Ray Handal, whose provisional suspension was lifted after it appeared probable that mycotoxins in his horse's feed could have caused his positive result.
“The Motion filed by the NHBPA is to supplement the record in its case before the Fifth Circuit Court of Appeals to permit the judges involved in the case to be alerted and knowledgeable of changes made by the Authority without approval or input from the FTC and to show that the rules that have been promulgated with severe punishment impacting horsemen have been done without sufficient scientific basis,” the National HBPA wrote in response to a request for comment from the TDN. “There is nothing in this motion that requests the court to stop this rule change but merely to show what is happening in reality to the suffering horsemen under HISA. The motion filed is not opposing the action taken by HISA, as was misrepresented by Mrs. Lazarus in her comments. While Mrs. Lazurus may score a few points in the propaganda dissertation, she has missed the fundamental issue with the rule change. The issue continues to be the lack of due process and equal protection for all parties involved.”
Dr. Doug Daniels said, “The NHBPA motion highlights the concerns raised by horsemen, which points to an exercise of the Authority's self-claimed 'enforcement discretion' of what the FTC approved, to what the Authority now wants. The Authority additionally admits a point stressed on multiple fronts by horsemen since the beginning. Specifically, in this case metformin lacked scientific basis for the substance's inclusion in the banned substances list, and is a problem that should and likely would have been avoided if the FTC had exercised more robust initial review than mere 'consistency' rubber-stamping.”
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