Comments made at last weekend's National Horsemen's Benevolent and Protective Association conference at Prairie Meadows in Altoona, Iowa, may have contained hints about the next direction of multiple legal disputes concerning the Horseracing Integrity and Safety Act.
Daniel Suhr, lead attorney in an important case brought against HISA by the National HBPA and affiliated entities, spoke out publicly for the first time about where he sees the litigation going. On the same day Eric Hamelback, the National HBPA CEO, said not everything is about winning and losing.
Suhr told the assembled audience a divergence of decisions from the Fifth and Sixth Circuit Courts of Appeals is bound to lead to a showdown in the United States Supreme Court. The Sixth Circuit upheld the constitutionality of HISA's enforcement powers while the Fifth Circuit, in which Suhr represents the HBPAs, reached an opposite result. Both courts found the underlying legislation's rulemaking law constitutional.
“My version of the Kentucky Derby is the Supreme Court oral argument,” Suhr said of facing the nine justices of the nation's highest court. “I think that’s where we’re going to end up, and I’m really hopeful when we get there. Just do math. I can count to five. Looking at the Supreme Court over the course of the last year for certain, for the last five years, there has been a consistent pattern where six of the justices are deeply skeptical of what I’ll call the modern administrative state … But I don’t want to give up on getting all nine justices."
Suhr, an attorney at the Center for American Rights, believes the enforcement power granted to HISA constitutes an unlawful overreach that offended Judge Stuart Kyle Duncan, who authored the Fifth Circuit opinion. Suhr said it is this issue that might unite the justices.
“… There are three other justices, though, who come from a different ideological basis," Suhr said. "They’re really concerned about the rights of criminal defendants… . So I’m somewhat OK with the fact that we’re going to have this not about rulemaking but rule enforcement. Because I think it gives us a better shot at convincing them to come around. I think they’ll be just as offended as Judge Duncan was at the idea that we’re going to have people running around roughshod over people’s rights.”
Suhr's comments came the same day National HBPA CEO Eric Hamelback, who's been a zealous opponent of HISA backed by his board of directors, addressed the conference. However, Hamelback's comments were not all fire and brimstone. After calling it “a new day” in the wake of the Fifth Circuit opinion and describing HISA as "our industry’s new four-letter word,” Hamelback began to temper his delivery.
“But I also want to say that the National HBPA had the same mission longer than HISA," he said. "We wanted national uniformity. We strived for national uniformity. We even supported the (Racetrack Medication & Testing Consortium) in an effort to do it in a scientific fashion. So the mission has been the same. But ... we’re pursuing this because there was a concerted effort to review the Act, and we did not feel like it was in the best interest of the horse.
“We want a level playing field," he continued, "We want cheaters out of the game. But how are we going to do it in the best way possible to protect horsemen, and is this Act the right thing to do? I think now we can justly say this Act as a whole is not right for horsemen and the horse racing industry and it’s not doing what is necessary to protect the horse.”
A release from the National HBPA, where the speakers' words were provided, then indicates "even with the favorable ruling in the Fifth Circuit," Hamelback said he resists viewing the results in terms of winning and losing. That is a position he’s morphed into, he said, "after having wins and losses ingrained in his psyche through his lifetime passions of football, polo, and horse racing."
In Hamelback's words, “You can’t think of that now, in that fashion. If you take a driver’s test and you fail, it doesn’t mean you got every question wrong. You can get things right. You can have some safety regulations that are good. You can have some medication rules that are good. But if you don’t get it all correct, you fail. That’s what HISA is doing right now for horsemen: they’re failing. ... (HISA) is not as a whole what’s best for horsemen. It’s not about winning, necessarily, or losing. We can win this round in the courts; we have to wait and see what comes up next. But it needs to be a complete Act; it needs to be what’s best (for) horsemen."
Hamelback appears to recognize the lack of uniformity on HISA from the courts. After all, no one has filed a legal challenge to HISA in major racing jurisdictions Florida, New York, and California, and the challenge that originated in a Kentucky federal court was swatted down by the Sixth Circuit ruling upholding HISA. He publicly expressed he is convinced HISA can be better. Will that point of view, in light of the unanimity in the courts that HISA's rulemaking authority is constitutionally valid, set the stage for discussions that might settle the litigation and leave the framework of HISA intact?
Suhr's and Hamelback's comments were preceded the previous day by another legal challenge to HISA filed in yet another federal court. The suit, brought by eight individuals in Oklahoma, may or may not be part of a strategy to put more pressure on HISA officials.
While the national and state HBPAs have been described in some circles as outliers when it comes to HISA, the new lawsuit could be an outlier of the so-called outliers. It seeks injunctive relief before the next meet at Remington Park starts Aug. 16. The HBPA release featuring the comments made by Suhr and Hamelback at the national conference doesn't mention the new case. Suhr is not involved in it and neither is the Oklahoma HBPA, which is a party to the case decided in the Fifth Circuit.
Of the eight plaintiffs in the new lawsuit, filed in U.S. District Court for the Western District of Oklahoma, seven were among 15 plaintiffs in another case filed against HISA in the same court in March 2023. That case was voluntarily dismissed June 28, 2023.
The national HBPA appears to remain united. Toward the conclusion of the conference Dr. Doug Daniels was re-elected to a second three-year term as president and chairman of the board by unanimous acclamation. After touting a rival legislative scheme—the Racehorse Health and Safety Act—to oversee the sport, Daniels expressed hope for less contention going forward.
“The top priority is getting the RHSA accepted and in play, getting people behind it,” Daniels said.
Whether that will materialize remains to be seen. It would definitely be a step backward, albeit temporary, for national uniformity of horse racing rules.
According to the National HBPA website, the proposed legislation provides for repeal of HISA immediately upon its enactment, at which time "the States may form their interstate compact. The Act takes effect two years after the date of the enactment. At that time, the Racehorse Health and Safety Organization is established, its board of directors may be appointed, and the simulcast ban begins for nonparticipating states."
Nevertheless, Daniels said, “I hope now, in the next three years, it will be a lot less contentious and a lot more meaningful from the standpoint of our horsemen looking forward to positive change. I look forward to doing all I can in the process. ... Right now there seems to be a lack of representation for the small-time horsemen, and I think it’s getting a little more so. All the new appointees are fabulous people and fabulous horsemen. But they don’t represent the same segment of the industry that I might, including the segment that can’t afford HISA."
