When you think of horse racing, what comes to mind? To many, it is the Kentucky Derby, the Churchill Downs, mint juleps, and wide brimmed hats. However, witnessing a thousand-pound horse collapse and be put down mid-race can quickly dampen the usual race-day festivities. This past spring, the Churchill Downs saw 12 horse deaths within a month of the Kentucky Derby.[1] This surge in fatalities reaffirms the need for improved safety standards in the sport.
On May 22, 2023, U.S. lawmakers were finally successful in implementing key aspects of the Horse Racing Integrity and Safety Act of 2020 (“HISA” or “the Act”).[2] HISA’s goal is to create uniform, national standards to regulate the horse racing industry and create a safer sport for both horses and jockeys.[3]
U.S. horse racing regulations have historically been determined by the state in which the competition is being held.[4] This often results in uneven safety and drug policies across the industry. For example, states could have different rules for the use of whips during a race (e.g., some states allowed more hits per race than others).[5] The types of medication allowed for horses could also vary state to state and create unequal competition.[6] With uneven regulations comes uneven punishment. Often a violation in one state would not transfer to another state.[7] This allowed lawbreakers to participate in a race in another state shortly after receiving an infraction elsewhere.[8] A lack of uniformity in horse racing has perpetuated drug and safety violations across the sport.
In 2019, a spike in horse deaths at the Santa Anita Park in California caused a public outcry and necessitated a state investigation.[9] The track saw 56 horses die from July 2018 to the end of 2019.[10] These mass deaths brought attention to long-existing issues in the race world and California implemented dozens of new rules to make racing safer.[11]
The issues plaguing the horse racing world came to a head in March of 2020 when 27 horsemen were federally indicted.[12] The charges were in connection with the illegal administration of performance-enhancing drugs to racehorses competing across the U.S. and overseas.[13] Among the defendants were trainers, veterinarians and drug suppliers.[14] Geoffrey Berman, U.S. attorney for the Southern District of New York, said the defendants participated in the doping scheme “not for the love of sport, and certainly not out of the care for the horses, but for money.”[15] These charges, along with the Santa Anita scandal, caught the attention of Congress.[16] Congress understood the urgent need to have consistent information and stricter standards across the country.[17]
HISA is the first federal law establishing national safety regulations for the sport of horse racing.[18] It supersedes the 38 state authorities that previously oversaw racing in the U.S.[19] The Act creates a self-regulatory organization, the Horseracing Integrity and Safety Authority (also “HISA” or “the Authority”), which is overseen by the FTC.[20] The Authority is empowered to set uniform, national standards for medication, track safety and testing of horses for performance-enhancing drugs.[21] It oversees the Racetrack Safety Program and the Anti-Doping and Medication Control (“ADMC”) Program.[22] The Racetrack Safety Program handles the non-drug related safety aspects of horse racing.[23] The ADMC Program handles drug and medication rules.[24]
The Authority rolled out the Racetrack Safety Program on July 1, 2022 and was hoping to launch the ADMC Program in January of 2023.[25] As HISA’s plans materialized, six separate lawsuits against HISA emerged and it was declared unconstitutional by the Fifth Circuit Court of Appeals in November of 2022.[26] Plaintiffs in these cases argued that HISA violated the private non-delegation doctrine by giving government power to a private entity (the Authority) without sufficient government agency supervision (from the FTC), among other complaints.[27]
The Racing Program successfully went into effect, but the ADMC faced resistance. In August of 2022, HISA submitted its proposed ADMC rules to the FTC, but they were denied because of the ongoing litigation.[28] Following the Fifth Circuit’s ruling that HISA was unconstitutional, Congress amended the legislation and on December 29, 2022, President Biden signed the new amendment into law.[29] On January 26, 2023 the FTC published HISA’s resubmitted ADMC rules.[30]
Per the FTC, the ADMC program began on March 27, 2023, but was paused by a court order on March 31, 2023.[31] On remand, a district judge handling the Fifth Circuit case accepted Congress’s amendments and on May 4, 2023, HISA was declared constitutional.[32] HISA’s ADMC program successfully resumed on May 22, 2023.[33]
The uniform standards set by HISA are a significant step towards making the sport of racing safer. However, implementing these standards may be challenging. Many horsemen have been adhering to HISA standards ahead of its enactment. Now that HISA is formally in effect, barns may struggle with the administrative requirements and costs that come with reporting to a government authority. As of now, immense safety issues remain, but tracks are working with HISA authorities to ensure their facilities become as safe as they can be.[34]
Image Credit: Mark J. Terrill / Associated Press
[1] https://www.espn.com/horse-racing/story/_/id/38108546/churchill-downs-install-new-safety-measures-horse-deaths; https://www.cbsnews.com/news/churchill-downs-racehorses-dead-euthanized-12-deaths-in-may-2023/
[2] https://apnews.com/article/kentucky-derby-new-antidoping-medication-rules-bc2be55ae9ad9b42b761611f79ee7744
[3] https://www.timesunion.com/news/article/horse-racing-doping-new-york-16771265.php?IPID=Times-Union-HP-CP-spotlight
[4] https://www.npr.org/2022/05/07/1096791414/horse-racing-kentucky-derby#:~:text=In%202019%2C%20dur%20ing%20the%20course,an%20alleged%20racehorse%20doping%20scheme
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] https://www.nytimes.com/2019/12/19/sports/horse-racing/santa-anita-horse-racing.html
[10] Id.
[11] Id.
[12] https://www.justice.gov/usao-sdny/pr/manhattan-us-attorney-charges-27-defendants-racehorse-doping-rings
[13] Id.
[14] https://ny1.com/nyc/all-boroughs/news/2020/03/10/27-people-indicted-in-horse-racing-doping-scandal
[15] Id.
[16] https://www.latimes.com/sports/story/2020-12-21/horseracing-safety-integrity-act-congress-passes
[17] Id.
[18] Id.
[19] Id.
[20] https://hisaus.org/about-us#the-act
[21] Id.
[22] Supra note 2.
[23] Supra note 20.
[24] Id.
[25] Supra note 2.
[26] https://www.bloodhorse.com/horse-racing/articles/268542/keeping-tabs-on-hisa-lawsuits-current-status
[27] https://www.bloodhorse.com/horse-racing/articles/256852/judge-hears-arguments-on-hisas-constitutionality
[28] https://hisaus.org/news/ftc-publishes-resubmitted-hisa-anti-doping-and-medication-control-rules-to-federal-register
[29] https://www.thoroughbreddailynews.com/sixth-circuit-parties-argue-whether-new-hisa-law-renders-anti-constitutionality-claims-moot/
[30] https://hisaus.org/news/ftc-publishes-resubmitted-hisa-anti-doping-and-medication-control-rules-to-federal-register
[31] https://www.bloodhorse.com/horse-racing/articles/269218/hisa-admc-program-in-full-swing-under-hiwu#:~:text=The%20Horseracing%20Integrity%20%26%20Welfare%20Unit,ordered%20pause%20on%20March%2031
[32] https://www.thoroughbreddailynews.com/federal-judge-rules-hisa-constitutional-after-laws-rewrite/
[33] Supra note 31.
[34] Supra note 1.
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