When Rich Strike crossed the finish line at the 2022 Kentucky Derby, the crowd, the announcers and even the horse’s trainer were stunned. It was a performance that overturned the predictions of horseracing’s most astute bookmakers. At 80-1 odds, Rich Strike proved that catching lightning in a bottle is not impossible. In that electric moment, it seemed that the horseracing industry’s troubles had faded and the effort to corral the nation’s 100+ Thoroughbred racing venues—along with jockeys, trainers, horses, breeders, owners, veterinarians, etc.—into the confines of the Horseracing Integrity and Safety Act (HISA), was within reach. But, judging by recent headlines, there could be trouble ahead. Time is running out, as one part of HISA goes into effect on July 1.
Equine Welfare, Integrity of the Sport
As catastrophic injuries to horses mounted, activists became increasingly vocal, undermining the industry’s efforts to bring patrons to the racetracks. And there have been scandals involving drugs, from performance-enhancing drugs to drugs that increase testosterone, to drugs that increase the flow of oxygen to muscles. Finally, a critical mass—of activism, concern about the future of horseracing and the staggering rise in equine deaths at some of the nation’s most prominent racetracks—pushed Congress to do something.
It took a coalition of stakeholders to forge HISA into a framework that had the potential to both ensure the safety and welfare of horses, and to rebuild public confidence in horseracing. Signed into law in 2020, HISA addresses its mission along two tracks: the safety of the actual racetracks and the conditions in which horses are training and racing; and standardization of anti-doping and medical control protocols.
The racetrack safety requirements include routine safety audits of track surfaces, pre-race examinations by track veterinarians, veterinarian-observed workouts, etc. More problematical and still controversial among some in the racing community is the effort to create uniform drug regulations.
The Horseracing Integrity and Safety Authority (HISA, which shares the same acronym as the legislation) originally selected the United States Anti-Doping Agency (USADA) as the partner in developing the drug protocols. USADA is the anti-doping organization for Olympic, Paralympic and Pan American athletes. After months of negotiations, USADA’s CEO Travis Tygart announced that the two entities had failed to finalize an agreement. His announcement lacked any sense of rancor, only sadness. “After months of negotiations, we have been unable to enter an agreement in line with the requirements of the Act, and one which would have given us a reasonable chance to put in place a credible and effective program. While we are obviously saddened by the outcome at this stage, we tried our absolute best to find a way forward but without success.”
In May HISA announced the selection of Drug Free Sport (DFS) International as a partner in developing the anti-doping and medication control agency. DFS has been involved with amateur and professional sports, from the NCAA to the National Football League, the PGA Tour, NASCAR and Major League Baseball. DFS will be responsible for creating the Horseracing Integrity and Welfare Unit (HIWU), which will become the enforcement agency for Thoroughbred racing. The anti-doping and medication control programs—still in development—will take effect in January 2023.
The Cost of Integrity
There’s no such thing as a free lunch, right? In government there’s no such thing as a free reform—regardless of the problems it is intended to solve. And so it is with HISA. Initially HISA (the Authority) was permitted to borrow money to fund its operations. Now the cost of maintaining and growing HISA becomes the responsibility of each state’s racing commission. The law specifies that not later than 90 days before the law takes effect, each state will be informed of how much money they will be responsible to contribute. The funding formula takes several factors into account, including the projected budget of the Authority for the next calendar year and the number of racing starts.
By mid-May the funding scheme had received mixed reviews. California, Kentucky and Minnesota officials agreed to remit HISA fees. Pennsylvania, New Jersey, Maryland, Texas and West Virginia had opted not to take any action on the fees.
In Pennsylvania the overt concern focused on the state’s laws. The Racing Commission is prohibited from charging fees to its licensees. So, the funding mechanism for HISA needs regulatory reform in the state. In other states, such as West Virginia, the debate about remittances to HISA became an opportunity to amplify grievances with the new law.
Underlying much of the enmity focused on HISA is the part of the law dealing with drugs. There are questions about how much the program will ultimately cost, along with the inevitable rules prohibiting certain drugs. Part of what undermined HISA’s relationship with USADA was the proposed drug protocol. Alan Foreman, Chief Executive Officer of the Maryland Thoroughbred Horsemen’s Association said that the safety protocols were not the problem. The resistance came with the anti-doping proposals. He said that the USADA’s proposed regulations “met with substantial resistance from just about every stakeholder in the industry.”
A Kick in the Gut?
While several prominent organizations, including the Kentucky Thoroughbred Association, the Thoroughbred Horsemen’s Association and the Thoroughbred Owners and Breeders Association offered HISA praise for selecting DFS to develop the anti-doping and medication protocols, other groups remain wary. Animal Wellness Action, an organization that had worked alongside elected officials and stakeholders in the horseracing industry for six years on HISA, is skeptical that DFS will succeed. In a joint press release with two affiliated organizations after the announcement about DFS, they explained why. “When discussions between the Horseracing Integrity and Safety Authority and the U.S. Anti-Doping Agency (USADA) ended, the entity best equipped to conduct an anti-doping testing regiment was discarded. The DFS will have to go a long way to demonstrate rigor, testing ability, and independence to do the work and to convince the American public that our national anti-doping law is being enforced.”
They pointed out that it seemed cost was a factor in the decision to drop USADA, and reiterated their position that, when it comes to the welfare of animals, cost should not be a factor. Further, they noted that Animal Wellness Action had participated in nearly one thousand meetings on Capitol Hill. And throughout those meetings, “animal protection advocates, horse racing industry supporters, and members of the Coalition for Horse Racing Integrity agreed and made it abundantly clear that USADA was the very bedrock and foundation of the legislation, and that we had confidence USADA was the Agency that had the ability to permanently stamp out the rampant doping and cheating that occurs in the so-called ‘Sport of Kings.’”
They expressed disappointment with the decision and called it “a kick in the gut for those of us who worked so tirelessly for more than six years to enact the Horseracing Integrity and Safety Act.”
What’s Next?
The to-do list for HISA seems daunting with the July 1 deadline looming. States like Pennsylvania, New Jersey, and Maryland, that have elected not to remit HISA fees will need to develop alternative plans for funding HISA. In the meantime, there is still a lawsuit challenging the constitutionality of HISA. That lawsuit, filed by the United States Trotting Association, the states of Oklahoma, West Virginia and Louisiana, and supported by several racing commissions, has yet to be decided by the United States District Court for the Eastern Kentucky District.
While the racing world is abuzz about the Triple Crown and on the long-shot horse that won the Kentucky Derby, the law intended to protect Rich Strike and all racehorses—along with their jockeys-- has left the starting gate, hoping to cross the finish line by July 1. What are the odds that HISA can overcome its challenges and win?