By Jennie Rees
HOT SPRINGS, Ark.–The National HBPA's National Conference at Oaklawn Racing Casino Resort kicked off Wednesday morning with a panel on the Horseracing Integrity and Safety Act entitled “HISA: Where are we now?”
It was a question largely answered with more questions, as has been the case with much of the dialogue about HISA since the legislation was passed and signed into law by former President Donald Trump in late 2020 as part of the massive COVID relief bill. The legislation requires the law to go into effect July 1.
“I spend my days these days on the phone answering the same question: 'What will HISA do?'” said Ed Martin, president and chief executive officer of the Association of Racing Commissioners International, a trade association representing racing regulators. “The answer is 'anybody's guess,' and the fact that I'm saying that should be troubling to everybody.”
Martin and the three attorneys on the panel were very clear in their views of the problems and issues facing the legislation's launch by the Horseracing Integrity and Safety Authority (also known as HISA). Peter Ecabert, the longtime general counsel of the National Horsemen's Benevolent & Protective Association, moderated the panel, with Martin joined by Pete Sacopulos, an equine attorney from Terre Haute, Ind., and Chris Kannady, a member of the Oklahoma House of Representatives who also serves as Staff Judge Advocate for the Oklahoma National Guard.
Kannady, a former Marine who served in Afghanistan, called HISA “a snake in the grass” snuck into a 6,000-page bill.
“Each and every state legislature, I don't care if you're a Republican or Democrat (the question is going to be): who is going to pay for this?” he said. “… Usually what happens with the federal government is they show up and say 'We want you to do this federal program. But we're going to give you 10 times what you put into the program.' … Here they're saying, 'Here's our law. You go pay for it.' There's no way in hell state legislators are going to hand over a bunch of money … to the federal government to run a federal program.
“It is never going to happen. It is destined for failure.”
Kannady said the funding will fall to the state racing commissions, which he predicted would pass on the costs to the horsemen and the tracks.
HISA faces two federal lawsuits challenging its constitutionality: one filed by the National HBPA and 12 of its state affiliates in Lubbock, Texas, and one filed by Oklahoma, West Virginia and Louisiana and supported by six additional states in Lexington, Ky.
Sacopulos is representing the North American Association of Racetrack Veterinarians in its support of the National HBPA's lawsuit. He cited four constitutional challenges:
The Constitution's non-delegation doctrine that says Congress is the branch that makes the laws. “So we cannot have Congress delegating the power to make laws to some private entity, and that's what has occurred. here,” Sacopulos said.
The appointment clause: “Who appointed the Authority?” he said. “In this case, we had a private entity appointed its own people. That runs afoul of the appointment clause in our constitution, which says if you're dealing with an agency, the executive branch of government should be making those appointments.”
The anti-commandeering provision: “Which says the federal government should not come in and take over state-run agencies and authorities,” he said.
The due-process argument. Sacopulos said that is best demonstrated by how the disciplinary process works now and how it would work under HISA.
“Most states have an administrative and judicial combination of what happens if you're accused of a violation,” he said, referencing the process of a stewards hearing and appeals to the commission before turning to court.
Sacopulos said that under HISA, the process starts with a review by the Authority, which, if a violation is determined to have occurred, turns it over to administrative law judge appointed by Federal Trade Commission.
If there is an adverse ruling, he said the FTC has no requirement to hear the case and the next stop would be the U.S. Court of Appeals.
“Let me tell you, for the U.S. Court of Appeals, the average cost is $20,000 to $50,000,” Sacopulos said. “… Due process is the right to be heard in a meaningful way within a meaningful time. What you've done is create a cost barrier that most people simply can't pay.
“There's no guarantee right to review,” he continued, adding, “and every one of these violations is now a federal violation, no matter how minor it might be.”
Eric Hamelback, CEO of the National HBPA, in his introduction of the panel said that his organization has been unfairly portrayed as being “off- base” in finding flaw with HISA. He called HISA “the new four-letter word that is giving all of us a lot of uncertainty.
“Lack of transparency, fear of unknown costs, lack of expertise in writing the rules certainly gives us a lot of cause for uncertainty,” he said. “…. We want transparency. Is that off-base?…. We wanted a seat when writing the rules, and I think everyone in this room knows we have none. The HBPA wants equal representation. We're not trying to run the show, but we certainly got run out of the room… In my opinion, they just don't want us playing their game.”
Martin said state racing commissions won't go away under HISA but their role would change. “We don't make laws. We implement them and we enforce them,” he said. “Our bottom line here is we don't want to see this turning into a mess–and that might be way beyond our control.”
Sacopulos said no matter how the federal courts rule, an appeal is a virtual certainty.
“I firmly believe there's there is a strong chance we're going to get a favorable ruling,” he said. “But then the question is: what's next? I think collectively we need to know what our next move is going to be. What's our proposal for a solution? In these types of situations, you always need to be thinking ahead.”
Hamelback said the National HBPA has never said it inherently is opposed to federal legislation but that it's vital to find out if HISA is legal. Otherwise, he said if rules violators are sanctioned under HISA, only to have the law declared illegal, “they walk away scot free.
“We have to do our due diligence now,” he said.
The conference's regular programming runs through Friday, with the National HBPA's board meeting Saturday. The event is being held in Oaklawn's hotel overlooking the track's first turn.
Lukas Challenges Everyone “To Make a Difference” Every Day
Wayne Lukas, the most transformative trainer in at least horse racing's modern era, delivered Wednesday's keynote speech at the National HBPA Conference at Oaklawn Racing Casino Resort in Hot Springs, Ark.
The 86-year-old Lukas challenged everyone in horse racing to do his or her part to be an ambassador for the sport. The four-time Kentucky Derby winner and all-time Breeders' Cup leader mesmerized the audience for 35 minutes with humor, jokes and mostly an impassioned pitch for every racing participant to do their part to be a cheerleader for the sport.
Lukas started off by saying that when a bettor “steps up to the window, choosing your horse and making a bet, he instantly becomes your financial partner for 15 minutes. He is invested in you.”
He went on to say, “We all have one purpose, and that is to promote the sport… We've got to make a difference. We've got to take every opportunity to introduce racing (to other people). Do you tell them how great it is? Do you sit down in an airplane and say, 'Have you ever been to the Derby?' Everyone of us should be recruiting new people every day, whether they are 6-yearsold or 96. We've got to reach out and tell them about what we've got going. We've got something really good going.”
For years, Lukas has made it habit after a victory to find a little kid to invite into the winner's circle.
“You cannot believe the response, how excited those kids get,” he said. “They're shaking, trembling, they are that excited. The kicker is I've gotten letter after letter after letter saying 'I'm 25-years-old and just graduated from the University of Arkansas, going to law school, and I have the picture from when you took me to the winner's circle when I was 8-years-old.'
“Why isn't every one doing that? It's so easy. Pictures aren't that expensive. If I win the Kentucky Derby this year, you can look up and there will be a small kid I've never seen before standing right next to me. Everyone of us can do that.”
Lukas concluded to a standing ovation after saying, “Each one of us has to try to make a difference. Will you make a difference today? Will you recruit someone today?” He said each night he looks in the mirror and asks himself, “I (might have) won a race, but did I make a difference today? Make a difference this week, people.”
Rees is a communications specialist in the horse-racing industry, whose clients include the National and Kentucky HBPA.