New Integrity Rules Coming to Horse Racing

Penelope P. Miller/America's Best Racing

The Horseracing Integrity and Safety Act was signed into law on Dec. 27, 2020 and focuses on ensuring the integrity of Thoroughbred horse racing and on the safety of Thoroughbred racehorses and jockeys by requiring national, uniform safety standards that include anti-doping and medication control and racetrack safety programs.

Below, we answer some frequently asked questions about the authority empowered with enforcing the legislation.

  1. What is the Horseracing Integrity and Safety Authority?

ANSWER: The Authority is an independent, private, nonprofit corporation that was created with the goal of being empowered by Congress to establish and enforce medication, anti-doping and racetrack safety rules and programs for the U.S. Thoroughbred racing industry. Now that the Horseracing Integrity and Safety Act (HISA) is law, the Authority has been duly empowered to take on its rulemaking and enforcement activities.

  1. What is Authority be authorized to do?

ANSWER: The Authority will implement and enforce a horse racing anti-doping and medication control program and a racetrack safety program for Thoroughbred racing. Subject to oversight by the Federal Trade Commission (FTC), the Authority will exercise independent and exclusive national authority over anti-doping and medication control and racetrack safety matters for all Thoroughbred racing and training in the U.S.

  1. Who is on the board?
    • Steve Beshear is an independent director from Kentucky. He served two terms as the 61st governor of Kentucky. An attorney by trade, Beshear has an extensive background in public service in Kentucky, including terms as Lieutenant Governor, Attorney General and a member of the Kentucky House of Representatives.
    • Adolpho Birch is an independent director from Tennessee who will chair the Anti-Doping and Medication Control Standing Committee of the Authority. Birch is senior vice president of business affairs and chief legal officer for the Tennessee Titans. Prior to joining the Titans, he spent 23 years at the National Football League's headquarters, with responsibilities that included administration and enforcement of the NFL's policies related to the integrity of the game, substance abuse, performance-enhancing drugs, gambling and criminal misconduct.
    • Leonard Coleman is an independent director from Florida. Coleman is the former president of the National League of Professional Baseball Clubs. He joined Major League Baseball in 1992 as the executive director of market development. Previously, Coleman was a municipal finance banker for Kidder, Peabody and Company and served as commissioner of both the New Jersey Department of Community Affairs and Department of Energy. Coleman is also a former board member of Churchill Downs.
    • Ellen McClain is an independent director from New York. McClain serves as the chief financial officer for Year UP, a nonprofit organization dedicated to closing the opportunity divide by ensuring that young adults gain the skills, experience and support that will empower them through careers and higher education. From 2009-2013, she served in various leadership roles with the New York Racing Association (NYRA), including as its president.
    • Charles Scheeler is an independent director from Maryland. Scheeler is a retired partner at DLA Piper. He has an extensive legal career in the private and public sector. Prior to joining DLA Piper, Scheeler was a federal prosecutor in the U.S. Attorney's Office and served as lead counsel to former Senator George Mitchell in his investigation of performance-enhancing substance use in Major League Baseball. Scheeler also has extensive experience investigating and monitoring Division I athletics programs' compliance with the National College Athletics Association.
    • Joseph De Francis is an industry director from Maryland. De Francis is the managing partner of Gainesville Associates, LLC. Prior to this role, he was a senior executive for various Thoroughbred racing entities including the Maryland Jockey Club and Magna Entertainment Corporation. De Francis has served on several industry and charitable organization boards, including the National Thoroughbred Racing Association (“NTRA”) and the Johns Hopkins Heart Institute, among others.
    • Susan Stover is an industry director from California, and she will chair the Racetrack Safety Standing Committee of the Authority. Stover is a professor of surgical and radiological science and the University of California, Davis and an expert in clinical equine surgery and lameness. Her research investigates the prevalence, distribution and morphology of equine stress fractures, risk factors and injury prevention, as well as the impact of equine injuries on human welfare.
    • Bill Thomason is an industry director from Kentucky. Thomason is the immediate past president of Keeneland, a role he served in from 2012 to 2020. Throughout his career, Thomason has been engaged with several industry organizations, including the NTRA and American Horse Council, as well as several civic and corporate boards, including the Kentucky Chamber of Commerce and the University of Kentucky Gluck Equine Research Foundation.
    • DG Van Clief is an industry director from Virginia. Van Clief retired in 2006 from serving as president of the Breeders' Cup since 1996. A long-time racing executive, Van Clief was chairman of the Fasig-Tipton Company and a trustee of the Jockey Club Foundation. For several generations, his family operated Nydrie Stud in Virginia, and his grandmother bred 1947 Kentucky Derby winner Jet Pilot.
  1. What about conflicts of interests?

ANSWER:  The Authority will be required to maintain robust conflicts-of-interest requirements for all board members and employees.

  1. How will the Authority be financed?

ANSWER:  By centralizing the administration of medication control and racing safety matters in a single office, the HISA will lead to some significant cost savings and efficiencies when compared to the costs incurred by approximately 30 duplicative state agencies. The HISA also provides the ability to coordinate with state racing authorities to streamline safety and medication practices and save further costs. It enables a broader-based and more equitable contribution from industry participants to underwrite the Authority’s activities. The HISA requires the Authority to allocate its costs on a state-by-state basis based upon each state’s proportionate share of the Authority’s costs, and it gives the states the choice of whether or not to fund its allocation. If a state chooses not to do so, then the Authority will collect the fees in the state through equitably spreading the cost within the industry participants in such states.

Further, the racing industry will not be charged twice. If a state chooses not to collect fees to cover the costs of the Authority in that state, the HISA precludes the state from charging members of the Thoroughbred industry any fees or taxes related to anti-doping and medication control or racetrack safety.

Lastly, the bill specifically precludes the federal government from directly funding the Authority. Its costs must be borne by racing participants, organizations and other participants in the industry.

  1. Why are Horse racing industry representatives on the board in a minority?

ANSWER: The Authority is structured to ensure that individuals independent of the Thoroughbred industry are in the majority when considering key issues. It does, however, contemplate significant industry input from the four industry directors as well as members of the advisory committees.

  1. What protections are in place to limit changes to the Authority’s structure and role?

ANSWER:  There are supermajority requirements for any material changes to the Authority’s governance rules as well as the ultimate oversight by the FTC.

  1. How does the Federal Trade Commission fit into the legislation?

ANSWER: The FTC will have oversight of the Authority in approving its rules and in the handling of appeals in violations matters.

  1. How will medication rules be set?

ANSWER: Baseline medication rules are set out in the legislation and the Authority is free to establish other rules, provided that the FTC approves. In order to modify the baseline rules in a manner that would make them less stringent, the HISA requires the approval of both the board and the United States Anti-Doping Agency (USADA) (identified in the HISA as the Authority’s medication control enforcement agency - further discussed below).

  1. How will the horseracing operation safety standards be established?

ANSWER: The Authority’s racetrack safety standing committee will develop proposed safety standards while taking into consideration existing safety standards including the National Thoroughbred Racing Association Safety and Integrity Alliance Code of Standards, the International Federation of Horseracing Authority’s International Agreement on Breeding, Racing, and Wagering, and the British Horseracing Authority’s Equine Health and Welfare program. The proposed safety standards will be presented to the Authority’s board for review and approval and, if so approved, they will be submitted to the FTC for final approval.

11. How will the rules be implemented in each state and at each track?

ANSWER: Pursuant to the preemption in the legislation, “covered persons” (eg. owners, trainers, veterinarians, race tracks for horses that run in races on which interstate wagering is conducted) in all racing states will automatically be subject to therules and regulations promulgated by the Authority, and the Authority, along with United States Anti-Doping Authority (USADA), shall have the right to enforce compliance. Once the new program becomes operative on July 1, 2022, states will no longer have the power to regulate or enforce their own rules and they have no ability to opt out of the Authority’s anti-doping and safety programs. If any states or covered persons fail to comply with the Authority’s rules and standards, the Authority will be able to seek orders of compliance from federal courts.

  1. How will USADA become involved?

ANSWER: The HISA provides that day-to-day anti-doping and medication control program operations be undertaken by USADA. The HISA requires that it conduct and oversee anti-doping and medication control testing and results management, including independent investigations, charging and adjudication of potential medication control rule violations, and the enforcement of any civil sanctions for such violations. It is also charged with accrediting testing laboratories.

As a predicate to USADA’s assumption of those duties, the Authority and USADA will have to enter into an agreement governing their relationship and USADA’s HISA-related activities.

  1. Will states continue to play a role in the enforcement of the Authority’s rules?

ANSWER: The Authority and USADA may enter into agreements with state racing commissions for services consistent with the enforcement of the racetrack safety program, services consistent with the enforcement of the anti-doping and medication control program, and to monitor and enforce racetrack compliance with the standards developed by the Authority. Through a collaborative process, the Authority, USADA and the states can choose to work together and come to an agreement on how racing medication and safety regulation and enforcement will be handled in the state, in all cases subject to conformance with the final rules of the Authority. Such agreements would likely delegate certain activities to the states (for example, sample collections and management of chains of custody) which will be performed under the close oversight of USADA and the Authority.

  1. Will small tracks be required to make the same safety-related improvements as larger, better-funded tracks?

ANSWER: The HISA requires the Authority to develop its training and racing safety standards while taking into account the differences between racing facilities and the regions in which they operate. Therefore, the law allows for some variation in standards that do not unreasonably increase risks for horses and riders. The Authority’s goal is to enhance the integrity and safety of Thoroughbred racing, and doing so will both increase racetrack revenues by increasing the public’s confidence in wagering opportunities and help ensure the public of the safety of the sport.

  1. How does the legislation affect existing state laws and regulations?

ANSWER: The legislation only pre-empts existing state laws and regulations relating to drugs administered to horses participating in races subject to interstate wagering and race track safety measures. The vast majority of laws and regulations within the authority of state racing commissions are unaffected. These include rules relating to wagering, licensing of all racing participants, breed enhancement programs, sales of breeding and racing stock, types of races allowed (ie. race conditions), claiming of race horses, taxation of racing and much more.

  1. What protections are in place to make sure the Authority is independent?

ANSWER: The board is designed to protect its independence by requiring a majority of the board be composed of independent members along with significant supermajority requirement for material changes along with FTC oversight. Furthermore, all members of the board must meet strict conflicts-of-interest requirements.

  1. What constraints/protections are in place to protect rights of those who are subjects of Authority investigations?

ANSWER: The Authority and USADA will have comparable authority as currently exercised by existing state horse racing commissions and will be legally required to provide for adequate due process, including impartial hearing officers or tribunals.

  1. What role will existing state horse racing commissions play?

ANSWER: The Authority and state racing commissions may choose to enter into agreements with the states to provide services consistent with the enforcement of the racetrack safety program and the anti-doping and medication control program.

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