Tom Noonan

Forgive me for appropriating one of the great lines from the Logan Roy character in Succession. But nothing can encapsulate better the opposition of those opposed to HISA and their chief enabler, the National Horsemen’s Benevolent and Protective Association (NHBPA).

HISA, the acronym for both the law and the agency overseeing it (the Horseracing and Safety Integrity Authority), is implementing uniform national standards governing thoroughbred racing in the country. It is the first time this has been attempted and follows decades of complaints about the lack of uniformity as one moves from state to state.

The law was signed in late 2020. HISA (the Authority) developed and promulgated regulations and established an agency that would oversee and enforce its requirements. Track safety standards were implemented in July 2022 and the Anti-Doping and Medication Control Program took effect in May 2023.

The need for an agency that would be responsible for a national uniform program of health and safety has been controversial since its conception – even though every popular sport in the United States has such uniform oversight. The proponents emphasized concerns about health, safety and integrity. The opponents stressed that those from “outside” – however that may be defined – would not be familiar with the sport and the training of horses

The NHBPA became the most outspoken critic of HISA, including participating in lawsuits to stop the program. Their legal opposition centered on the constitutionality of the HISA law, and they obtained an injunction upheld by the Fifth Circuit Court of Appeals. The law was then amended to remedy what Congress believed to be the legal infirmity. The case is now again before the Fifth Circuit challenging the amendment.

Congressman Clay Higgins, a Republican from Louisiana, recently introduced the Racehorse Health and Safety Act (RHSA) to replace HISA. It has been endorsed by the NHBPA and many of its affiliates across the country. The urgency with which the NHBPA views improving safety and health can best be demonstrated by reviewing the timeline predating the filing of this proposed legislation.

The NHBPA was established in 1940. While it purports to represent “over tens of thousands of horsemen” through its affiliate organizations, it does not have such organizations representing the thoroughbred horsemen and horsewomen in California, New Jersey, Maryland, Delaware, Gulfstream Park and the tracks of the New York Racing Association.

To my knowledge, this is their first effort to support national legislation to reform racing. The filing of this bill last month is more than five years after the legislation that became HISA was introduced and publicly discussed among racing leaders and participants. HISA became federal law almost three years ago. Since that time, the governing authority (HISA) has promulgated proposed regulations, accepting comments to those regulations and finalizing them. It has since implemented the major components the law while simultaneously defending it in multiple court rooms.

I suppose one could commend the NHBPA for its deliberate approach in championing legislation that would address any flaws with the current law and incorporating the input of the many stakeholders in racing, but let’s look at what this proposed legislation would do:

• Repeal HISA immediately, not replacing it with anything in the interim;
• Delay the implementation of the bill’s new provisions for a minimum of two years after the effective date of the new law;
• Allow for the law to never take effect if a sufficient number of states (two) do not sign on to this voluntary program;
• Allow states to retain the enforcement of the law’s provisions instead of a uniform national system that would do that;
• Remove the long-standing trainer responsibility principle for medication violations and replace it with a rebuttable presumption; and,
• For the medication control committee, allow for a majority of members to be appointed by – wait for it! – the NHBPA.

This is legislation that would not result in anything positive for the health and safety of the equine and human athletes in racing but would set us back to a time even worse than what caused the realization that racing needed to reform or face extinction. The rhetoric accompanying the announcement of the bill’s introduction portrayed serious flaws in the agency implementing the federal law, and placed racing on “life support” because of HISA according to the President of the NHBPA.

Not to be outdone, the NHBPA’s long-time accomplice in opposing HISA, the Association of Racing Commissioners International (ARCI) released a report purportedly assessing the results of HISA thus far. To describe it as shallow and shoddy would be charitable. It could not even report accurately the implementation date of HISA’s Anti-Doping and Medication Control Program on May 22, 2023. Instead, it repeatedly said it occurred two months before. While this may seem an insignificant error, it was a date widely reported in the racing world, and perhaps they thought it would add a veneer of credibility to their “analysis” if it covered six months instead of only four. And if there was any part of the racing industry that should know better, it was these same racing commissioners for whom this was a vitally important date.

While the opponents cite a constitutional principle as driving their views, I doubt that even a handful could identify what that principle is. Rather, the opposition is predicated on some of the traditional standbys of those opposing change in their own particular field – protecting one’s turf. The NHBPA appears to exist solely to have their CEO appear at industry conferences and an occasional legislative hearing. The ARCI has a more immediate threat in that the HISA law would subsume many of their own regulatory duties. (Not knowing the correct date of HISA”s medication reforms is perhaps a useful indicator of how well they do those jobs.)

Another complaint, of course, is denigrating their replacements as outsiders who do not know what they are doing. Liza Lazarus, HISA’s CEO, has come under particular criticism for not being knowledgeable about racing. It is harder to direct that criticism against some of her lieutenants such as Mary Scollay or Jennifer Durenberger who have years of background in both racing and management oversight. But all one fair-minded person has to do is listen to any of the numerous sessions that HISA management, particularly Lazarus, has conducted with both racing groups, but more importantly with any of the numerous sessions conducted with on-track personnel. They also regularly contribute up-dates with the industry’s trade publications.

They, first of all, do such sessions, some of which are available on-line. They are knowledgeable, committed, and responsive to concerns. In a most remarkable attribute for those in positions of authority, they acknowledge mistakes and take steps to correct them. Are they perfect? Of course not. But they are willing to listen and make improvements.

But I suspect the true motivating factor behind much of the opposition is drugs, particularly Lasix. Lasix is an approved medication and is still permissible for administration on race day in most races (excepting two-year olds and stakes) in every jurisdiction in the United States. It is not permitted on race day in any other country in the world of which I am aware. Its purpose is to address pulmonary bleeding, although its fervent proponents recommend it as a prophylactic measure. (I have experienced a veterinarian recommending it following a race even though the horse did not bleed.) The HISA law calls for a study on its effectiveness.

While this has been a controversial topic in the past, and often generated spirited debate, the discussion of it has been remarkably muted in this discussion of HISA and its effectiveness. I suspect the reason is that HISA opponents do not view this as a particularly propitious time to be advocating for race day medications. Their place holder argument has become HISA’s preventing veterinarians from practicing medicine in a manner beneficial to horses. Thus we have the President of the NHBPA (and a veterinarian) arguing in an opinion piece, “the answer to cleaning up the industry cannot be to kill the industry entirely with a sledgehammer by eliminating veterinarians’ ability to properly practice through therapeutic medications.”

HISA, of course, does no such thing. But it is easier to raise bogus arguments about the constitution and the purported failings of HISA (both the agency and the law) than publicly admitting you seek a return to the halcyon days of more limited regulation of racehorse doping by the states. We should not forget that one of the prime factors behind the enactment of HISA was the massive (and successful) federal prosecution of numerous trainers and veterinarians that resulted in Jason Servis, Jorge Navarro, and their enabling veterinarians serving time in federal prisons. The favored approach of the NHBPA and ARCI is to restore that era when state racing jurisdictions did nothing to stop the widely perceived cheating and equine fatalities of Servis, Navarro and their accomplices.