A horse is a horse, of course, unless that horse is a racehorse in America. In that case the horse is at the center of an expensive—often heated—debate at the heart of a declining industry. For years a patchwork of regulations has governed the country’s 38 racing jurisdictions. So, racetracks in Pennsylvania and racetracks in West Virginia likely have different standards regarding racetrack safety, pre-race and post-race veterinary examinations of horses, even the types of riding crops jockeys are permitted to use. And then there is the issue of drugs. Drugs that some racing jurisdictions consider routine and acceptable, others prohibit.
As many in the industry lamented the precipitous decline in popularity of horseracing, and argued for dramatic reform that would focus on safety—for horses and riders—some challenged the notion that radical change was needed. The money from wagering on horseracing in 2003 totaled more than $15 billion. By 2015, the year that American Pharoah won the Triple Crown, that total had dropped to $10.6 billion. American Pharoah’s trainer, Bob Baffert, said racing didn’t need a commission or reform. “The sky is not falling,” he told Newsweek then. “I don’t see a problem. We just need more stars.”
Reform Isn’t Breaking News
Reform had been bouncing around Congress in one form or another since 2011, and had robust support from leading organizations such as The Jockey Club, but a sense of urgency was lacking in Washington. The crusade gained a critical mass of support, though, as numerous crises roiled the industry recently. There was an appalling increase in race-related deaths of horses. There were high profile and impassioned protests at racetracks, demanding an end to horseracing. There were arrests of jockeys, trainers—even one prominent track veterinarian—on charges of manufacturing, misbranding and treating horses with performance-enhancing drugs. Currently there is the proliferation of sports betting, and the ongoing move to “decouple”—eliminate the racing requirement from casinos. And there is the specter of declining attendance at racetracks—a trend that began decades ago, but has accelerated, many believe, as a result of the mounting catastrophic injuries to horses and the proliferation of drugs.
Creating uniform standards for an industry this diffuse and beholden to an expansive array of disparate stakeholders seemed a futile exercise. But industry leaders and legislators managed to cobble together the so-called Horseracing Integrity and Safety Act (HISA) which was signed into law in December 2020.
Another Day, Another Court Challenge
Celebrations of HISA’s final passage didn’t last long. Within weeks the new law was challenged in court. The United States Trotting Association (USTA), the National Horsemen’s Benevolent and Protective Association (NHBPA), several states and racetracks filed lawsuits claiming HISA was unconstitutional. The most contentious sticking point? Drugs. Critics railed against the promise of regulations that would ban certain drugs from the sport and limit the use of others. Finally, last November HISA was declared unconstitutional by the Fifth Circuit Court of Appeals, because it “delegated government power to a private entity,” that entity being Horseracing Integrity and Safety Authority (HISA), the agency that shares its acronym with the law it is intended to enforce.
Despite the legal challenges, HISA’s racetrack safety program went forward, and all racetracks were required to complete safety audits by January 31, uploading data to HISA’s portal. The anti-doping protocols, which were supposed to take effect in January, were stymied by the Fifth Circuit Court’s decision that HISA was unconstitutional.
That hurdle was, supporters thought, finally overcome with passage of the Omnibus Spending Bill in December, which President Biden quickly signed into law. Buried in that legislation was an amendment that affirmed the Federal Trade Commission’s (FTC) authority to oversee HISA’s anti-doping rules. Pursuant to approval of the anti-doping protocols, the FTC published the rules in the Federal Register for public comment.
“The public comment period on HISA’s Anti-Doping and Medication Control (ADMC) rules closed on February 9,” according to Mandy Minger, HISA’s Director of Communication. “HISA expects the FTC to make a decision about the proposed ADMC rules by March 27 and if approved, the rules will go into effect on that date,” she said. “In order to ensure that the industry is prepared for the ADMC Program’s expected implementation on March 27, Horseracing Integrity and Welfare Unit (HIWU) and HISA are actively working to educate racing participants about the strategic testing plan and other aspects of the Program.”
HISA announced March 8 that it will also begin using “can’t-race” flags to enforce its existing Racetrack Safety and Registration regulations beginning on March 27. Covered persons and horses who are not in compliance with the Racetrack Safety and Registration rules, which went into effect on July 1, 2022, will be at risk of being unable to race until they comply with the rules.
“March 27, 2023 will truly be the start of a new era in Thoroughbred racing,” said HISA CEO Lisa Lazarus. “An added level of enforcement of our Racetrack Safety and Registration rules, coupled with the launch of our ADMC Program, will be a clear sign to all that the racing industry is taking equine wellbeing and rider safety incredibly seriously”.
Serious Challenges Remain
“Lawsuits take a long time to play out,” Minger says. “But the main point in those lawsuits was that HISA was unconstitutional. The Omnibus bill settled that.” She noted that, while it has been a long slog to get from HISA’s creation to this point, more work needs to be done. “HISA is working with every state to try to accommodate what their timing and their legislation tells them they can do. As long as we are having meaningful conversations (with the various racing jurisdictions), we’re finding meaningful solutions.”
HISA’s regulatory clout includes the option of severing simulcast signals of jurisdictions that refuse to comply with the regulations. Many racetracks depend on simulcasting for revenue from wagering and off-track betting, so the possibility of losing that revenue is not insignificant. The Texas Racing Commission stopped the state’s racetracks from simulcasting, and in early February they joined several other states and racing entities in mounting yet another challenge to the constitutionality of HISA. Once again, the fate of HISA rests in the courts.
Beyond the continuing legal challenges there are serious logistical challenges facing HISA and its anti-doping partner HIWU. A global shortage of large animal veterinarians will make it difficult if not impossible to ensure that racehorses have pre-race exams. And, as the plans for drug-testing go forward, HIWU will collide with yet another shortage—veterinary technicians.
The Right and Moral Answer
The issue of drugs—with or without HISA—will not go away quietly. They’ve become markers in the ways many potential horseracing fans view the industry. Trainer Bob Baffert was suspended from entering horses in races at Churchill Downs for two years in 2021 after his Kentucky Derby winning horse Medina Spirit was disqualified for failing a drug test. Recently he asked a court to lift his suspension so he could enter a horse in this year’s Kentucky Derby. His request was denied.
A horse is a horse, of course, but horses carry with them intense emotional connections to humans. “Nobody can stomach even one horse going down,” Minger says. “We have to take the responsibility very seriously because it’s the right and moral thing to do. But the fans are important too. We have to be fair and kind to the animals.”