By Bill Finley
A $1.7-trillion omnibus spending bill that includes language that would give the Federal Trade Commission (FTC) more authority over the Horse Racing Integrity and Safety Authority (HISA) passed in the House of Representatives Friday. Friday's development came one day after the bill passed in the Senate. The bill will next go to President Joe Biden to be signed into law.
The language in the bill relating to HISA is meant to address issues raised by the Fifth Circuit Court of Appeals in November. That court ruled that HISA was unconstitutional because the FTC's powers were limited and that HISA had too big of a role. It is believed that the relevant language in the bill allows the FTC to “abrogate, add to, and modify the rules of the Authority promulgated in accordance with this Act as the Commission finds necessary or appropriate to ensure the fair administration of the Authority, to conform the rules of the Authority to requirements of this Act and applicable rules approved by the Commission, or otherwise in furtherance of the purposes of this Act.”
While Friday's development was a win for HISA, the battle between pro and anti-HISA forces is far from over and it's unclear what will happen next. However, it appears likely that the National HBPA and other groups fighting HISA will not back down and will continue to challenge the many issues that have been raised in the courts. It's also unclear what steps will now be taken by HISA and the FTC in order to get HISA back on track. Possibilities include asking the Fifth Circuit to reconsider its ruling in light of the fact that the FTC will have more power going forward. It's also possible that the FTC can essentially start the entire process over and ask HISA to resubmit its proposed rules.
Should the Fifth Circuit reverse itself and give HISA the green light to go forward, there are other lawsuits out there that could once again change the direction of the dispute. One is a case in which plaintiffs have made familiar arguments relating to the constitutionality of HISA that has been argued in the Sixth Circuit, which has yet to issue a ruling. Another case is pending in the U.S. District Court of Texas-Northern District, Amarillo Division, which raises several constitutional problems with the law, other than FTC rule-making input. The bottom line is that, from a legal standpoint, nothing yet is certain when it comes to HISA.
After the spending bill passed the house, the NTRA issued a press release celebrating the victory that included comments from several industry leaders.
“On behalf of NTRA members, which include broad representation of every aspect of the Thoroughbred industry, we welcome the successful bipartisan efforts of Congress to reaffirm Congressional support for HISA's mission,” said NTRA President and CEO Tom Rooney. “HISA is critical to our sport and we look forward to working collaboratively with every industry constituency to continue to support the essential role of HISA going forward. We especially want to thank Congressional leadership in Leader McConnell, Leader Schumer, and Speaker Pelosi, committee leadership in Chairman Pallone, Chairwoman Cantwell, and Rep. Schakowsky, and our longtime champions Reps. Tonko and Barr and Senators Feinstein and Gillibrand. Finally, I thank the many people from far and wide across the industry who advocated for this law with their elected officials.”
“The Jockey Club is extremely appreciative of the efforts Congress is making in support of the Horseracing Integrity and Safety Act,” said The Jockey Club President and COO Jim Gagliano. “The Jockey Club has supported nationwide, uniform rules and regulations for Thoroughbred racing for decades through numerous initiatives. HISA is Thoroughbred racing's best solution to greatly improve regulation of the sport and to help ensure our sport is clean and is safe for our athletes–both equine and human.”