With Approvals, ADMC Program Could Begin in Mid-March

The Horseracing Integrity and Safety Authority's Anti-Doping and Medical Control Program could be initiated by mid-March if upcoming court decisions find HISA constitutional and the Federal Trade Commission accepts ADMC rules, HISA CEO Lisa Lazarus said Jan. 5. The FTC, which oversees HISA, disapproved those rules Dec. 12 based on legal uncertainty arising from a decision by the U.S. Court of Appeals for the Fifth Circuit, which declared the 2020 act that created HISA unconstitutional. HISA, responsible for drafting and enforcing uniform safety and integrity rules in U.S. Thoroughbred racing, began its Racetrack Safety Program in July and had been scheduled to implement the ADMC Program at the start of 2023 prior to the FTC decision. The ADMC Program is designed to create a centralized testing and results management process and apply uniform penalties for violations consistently across the U.S. Late December passage of a $1.7 trillion omnibus spending bill, which included language delegating more FTC authority over HISA, places it on sounder legal footing. This legislative action came after judges in the U.S. Fifth Circuit Court of Appeals questioned if HISA was subordinate to the FTC. Since that time, attorneys for HISA have asked a federal appeals court panel to set aside its ruling declaring the entity's underlying legislation facially unconstitutional, citing a recent amendment to the law. Another appeals court based in Cincinnati, the Sixth Circuit Court of Appeals, is reviewing another challenge to the constitutionality of HISA but has not ruled. That court has notified the parties to file additional briefs addressing the amendment by Jan. 12. In a video conference with reporters on Thursday, HISA shared legal precedent for courts to consider the recent amendment in reviewing HISA's constitutionality. "We resubmitted the anti-doping rules, and we're hopeful and optimistic that we will be able to implement them, probably around mid-March," Lazarus said. "Obviously, it's dependent on the FTC, when they put them on the (Federal) Register, when they actually approve them. But that's our current expectation of what the timeline looks like." Following her comments Thursday morning, the U.S. Fifth Circuit Court of Appeals ruled that it would not treat a HISA request to vacate a recent unconstitutionality order as an "emergency" that requires an expedited decision, which could have accelerated the process. A mid-March date would allow for a required public-comment period of up 60 days, according to HISA. HISA's critics and opponents in court, among them the Horsemen's Benevolent and Protective Association and some state regulators and racing entities, question its legality and claim HISA oversteps the authority of states and their racing laws. Some critics also believe HISA creates bureaucratic red tape and additional costs without substantive policy changes. One state regulator, the Texas Racing Commission, has taken action for Texas tracks to not export their Thoroughbred signals to other states, leaving Texas outside HISA authority. The TRC believes HISA's federal oversight creates a statutory conflict that "threatens to prevent the Texas Racing Commission from fulfilling its regulatory duties on pari-mutuel wagering." King: Sam Houston to Begin 2023 Meet Without Simulcast Export HISA's rules have not been enforced in Louisiana and West Virginia, two other states largely in opposition to the federal program, since the U.S. Fifth Circuit Court of Appeals decision. HISA's operating budget in 2023 was initially established at $72.5 million, of which $58 million was for the ADMC program run by its affiliated Horseracing Integrity and Welfare Unit. The collection of those fees—placed on hold in mid-December—was to come from assessments sent to state racing commissions and racetracks. Assessments are "still coming in from 2022, which is good and positive," Lazarus said. "That suggests to me... that the industry accepts that HISA is still moving forward, is still viable, and has the credibility that we need to have to move forward. "In terms of 2023, we've submitted a revised budget to the FTC based on the fact that we aren't conducting testing for the first 2 1/2 months of 2023—again, that timeline is not determined until the FTC decides—we know at a minimum, it is not going to be earlier than that." HISA's processes have not been affected by the broader authority granted to the FTC, Lazarus said. "We obviously submit our rules to the FTC," she said. "I think the only thing that changes—and it's something the HBPA wanted and asked for—is it gives the FTC just broader powers to modify our rules. Ultimately it doesn't change what we do, but it certainly changes what the FTC sort of has in its toolbox with regard to responding to what we submit. "We're happy for the FTC to have that additional authority that the legislative amendment granted because ultimately we're just trying to create, to suggest and propose rules that we think improve safety and integrity. If the FTC sees a reason to modify them, then we're happy to receive those modifications." In describing HISA's intended moves for greater transparency—officials there claim HISA is not subject to open-records requests, as state and federal agencies are—she called her organization "between a public and private entity." She pledged an online platform for individuals to view ADMC rulings and status updates on the HISA website should the ADMC program go forward. "We're obviously a private entity, but we understand that (as) public-facing that we act like or seem to act like a public entity. We have responsibilities there," she said.