Thoroughbred Racing Fan Association, Inc.
Thoroughbred Racing Fan Association, Inc.
HISA LEGAL PATH
12/12/2022
Twenty-four months ago, the Horseracing Integrity and Safety Authority became law as part of that year’s Omnibus Spending Bill. As the second anniversary of the law comes upon us, the future of HISA is in question. From the beginning supporters have organized and lobbied for federal intervention that would improve racing. Opponents have lobbied to make the law more favorable to the industry. Failing they turned to the courts for relief. Action by courts is important to the news media, but not always good for racing. Mediation is usually better because the deciders are people most familiar with the problem, its root causes, and the best solutions. However, our quick-fix society has little patience. In this case the courts fit the bill. There is little doubt that racing has problems, but not everyone agrees on the causes and certainly not on the solutions. For decades racing has seen its fan base dissolve, revenues erode and the public form negative opinions on how we care for horses. Why is it that a sport so steeped in tradition and lead by business icons cannot right itself? If we knew the answer, we would not be having this discussion today. Racing jurisdictions see the sport as local. Changing is threatening to existing stakeholders. ‘Will the proposed change affect my revenue, my livelihood?’ If perceived that it will, then change is unacceptable. That is where racing is with HISA. Over the past 25 years we have seen efforts by the industry to control the use of illegal medication with modest improvement. The establishment of the National Thoroughbred Racing Association (NTRA) offered the potential for national leadership. Many of their efforts were undermined by local jurisdictions. The Safety and Integrity Alliance was tolerated, but not embraced. In the early part of this century a group of states tried to nationalize racing with the Interstate Racing and Wagering Compact. As benign as that effort was, not enough states could be convinced to support it. There have been other efforts to improve racing that followed a similar path. Many watched as the sport spiraled down. When the Horseracing Integrity and Safety Act was proposed it seemed like a good beginning. The difference between it and previous efforts was the government driven attempt. That alone disturbed people who felt government should not be ruling racing. Understood. But with the litany of failed efforts by the industry something else had to be tried. Who should do it? Six months into the life of HISA they are defending themselves from as many as three legal challenges. The recent ruling by US Court of Appeals for the 5th Circuit declared HISA unconstitutional. Although it stayed its decision until January 10, 2023, it puts HISA in jeopardy. Do the supporters of this case really want HISA to go away? It does not appear that HISA’s opposition wants to mediate a solution. Even Ed Martin, CEO of Association of Racing Commissioners International (ARCI) believes that congress should start over with HISA and produce a solution that all can accept. His thinking might be correct but reality and past performances suggest that kind of consensus will never happen. What is the alternative? There seem to be two, maybe three. Our best hopes are that all sides realize that pursuing litigation is only costing money and will not reach a satisfactory ending. (1) Mediation is the best option for all. Mediation is not negotiation. When facilitated by an expert, mediation can yield a satisfactory outcome for all. (2) If litigation continues, the case could go to the US Supreme Court from which a decision by people who know little about our sport would be unsatisfactory to all parties. But it would be one that racing would have to live with as law. (3) The last is the US Congress with the push of Senate Minority Leader Mitch McConnell would amend the law to meet legal standards and let HISA proceed. This would not appease the interest of the opponents of HISA. The second is a “crap shoot” in which the risk is high for both sides. The first is the best solution of the three. The VERY best solution is a combination of the first and the last. All sides need to say what they want, not what they do not want --- a key ingredient of mediation. With that, Senator McConnell will join Senator Schumer to craft an amendment that is acceptable to most and that the courts will accept. We all could benefit. Let’s stop fighting and start finding a solution that improves our sport. That is what fans want.