GLC Government Lawyer in Residence breaks down new rules for Sport of Kings coming in 2022
Horse racing regulation is traditionally sedentary and certainly fragmented across the United States currently.
Even though day-to-day races look similar from track-to-track to a layman, racing rules and drug restrictions can vary from Kentucky’s Churchill Downs to California’s Santa Anita Park and be different yet again at New York’s Saratoga Race Course.
However, federal regulation that will apply to all thoroughbred tracks across the country is on the way. In the forthcoming research paper, “Introducing the Horseracing Integrity and Safety Act and a New Era of Racing Regulation,” Albany Law School Government Lawyer in Residence Bennett Liebman explores and explains the new federal regulations. The paper is available online and appears in the spring 2021 edition of the New York State Bar Association’s Entertainment, Arts and Sports Law Journal.
At the end of 2020, Congress passed, and the president signed, the Horseracing Integrity and Safety Act as part of the omnibus Consolidated Appropriations Act. The legislation takes effect on July 1, 2022.
It was designed to create a uniform national standard for thoroughbred racing because of tragedies on the track (for example, there was a significant spike in horse breakdowns at Santa Anita in 2019), medication scandals (2021 Kentucky Derby winner Medina Spirt and trainer Bob Baffert being the latest example), and an inconsistent patchwork of regulations. Federal recognition and enforcement power will be given to several agencies including a new independent Horseracing Integrity and Safety Authority (HISA) to govern thoroughbred racing.
Then Senate Majority Leader Mitch McConnell – who originally opposed the bill until Churchill Downs in his home state of Kentucky agreed to support the legislation – helped shepherd the bill through Congress along with New York Congressman Paul Tonko. Tonko’s 20th District is home to Saratoga Race Course.
“The belief was that the existing regulatory setup featuring individual state racing commissions, each with differing rules, with limited State allocated budgets, with occasionally indolent levels of dedication to enforcing existing drug rules and employing drug testing facilities of varying levels of sophistication was not up to the enormous task of promoting safety and integrity in racing,” Liebman points out in the paper. He cites that the trainer of 2008 Kentucky Derby winner Big Brown regularly treated his horses with anabolic steroids and the results of a longstanding federal investigation, where 27 individuals were charged – including some prominent thoroughbred trainers – with a conspiracy to drug their horses in 2020.
With two standing committees – a Racetrack Safety Standing Committee and an Anti-Doping and Medication Control Standing Committee – HISA will be overseen by the Federal Trade Commission (FTC). The FTC will have to approve substantive and procedural HISA rules and determine appeals from HISA decisions. HISA is mandated to seek an agreement with United States Anti-Doping Agency (USADA) to serve as an anti-doping and medication control enforcement agency, but USADA will not be responsible for prescribing drug rules.
While HISA covers thoroughbred racing, coverage of other breeds of horses is left to individual racing commissions or breed governing organizations.
“If the United States Trotting Association agreed to Authority control, for example, all of American harness racing would be subject to regulation by the Authority. If either the racing commission or the breed organization elects to authorize Authority coverage, it must have a financing mechanism in place to pay for the Authority’s costs,” Liebman writes. He goes on to note that expanding HISA to other breeds of horses could lead to staffing and drug testing problems due to increased demand.
One area of compromise in the act was the use of race day Lasix. Lasix, also known as furosemide and described as an anti-bleeding medication, is used by veterinarians to prevent respiratory bleeding in horses running at high speed. Blood entering the lungs during high physical activity can cause a pulmonary hemorrhage and result in death. HISA will conduct a study of the effect of Lasix on equine health and the drug will be banned in all two-year-old races and in stakes events. If a racing commission requests, Lasix can still be used for three years in a state. After the three-year period, only a unanimous vote from HISA would continue the allowance for race day Lasix.
Even with the passage of the law, there are many potential hurdles to still be cleared. Potentially strained relationships between HISA and state-level racing commissions, whip use by jockeys (both intentional and accidental), and the sheer amount of potential drug testing (36,207 thoroughbred races were run in America in 2019 with approximately 270,000 starters in those races) are just a few issues Liebman points out in the paper.
“Given the opposition of some elements of the racing industry to HISA, it would not be surprising to believe that constitutional challenges will be made to the law. One likely form of the challenge will be to the incorporation of reference of the rules of the non-government organizations that are the baseline drug rules,” Liebman writes.
Having the FTC as the oversight body is also a potential pitfall according to Liebman.
“The FTC has much bigger business to pursue than just racing,” he writes. “It enforces many more laws of greater consequence to the American economy than horse racing regulation. It has no animal welfare expertise, unlike the United States Department of Agriculture.”
Prior to his current work in the Government Law Center at Albany Law School, Liebman was a member of the New York State Racing and Wagering Board beginning in 1988 and serving for more than a decade, including a term as its Acting Co-Chair. He also spent three years as Deputy Secretary to the Governor for Gaming and Racing stepping down in 2014.
“Most everyone can agree that this was the proper time for a change in racing regulation. But will this be American racing’s road to Damascus, a top flight assault on racing’s problems, or will this reform be close but no cigar?” Liebman asks in the conclusion of his paper. “Maybe racing will regret this action as a sham. Will racing commissioners give the devil his due and enter into working agreements with the authority, or will they simply forego dealings with the Authority? Will the Authority work as diligently as John Henry to be a crusader for racing interests, or will it just be a buck passer? Will the constitutionality of HISA be affirmed? It may be best to keep an open mind on the future of racing regulation, but one should understand that upending the status quo in horse racing is always an upset.”