As regular readers will know, I have been a strong advocate and supporter of the Horseracing Integrity and Safety Act (HISA) from the time that it was first introduced in the House of Representatives as the Horseracing Integrity Act of 2015 until it was signed into law by the President on December 28.
I believe it is perhaps more important than the only other federal legislation regulating horseracing, the Interstate Horseracing Act of 1978, which in effect created national simulcasting by permitting states to initiate and accept wagers across state lines.
In this column, I will be exploring a July 10, 2018, letter from the Coalition for Horseracing Integrity, written by Stuart Janney and Craig Fravel in response to a Congressional hearing where two horsemen’s representatives and a regulatory executive overstated the current state of the regulatory oversight of racing in the U.S.
I will also feature recent articles that have been optimistic about HISA, which will be operating no later than July 1, 2022.
The Horseracing Integrity Act of 2015 was initiated in the U.S. House of Representatives and sponsored Representative Andy Barr (Republican, Kentucky) and Representative Paul Tonko (Democrat, New York).
The Coalition for Horse Racing Integrity was formed to advocate for the legislation. It represents a diverse group of racing and animal welfare organizations, including the Jockey Club, Breeders’ Cup Ltd, the Water Hay Oats Alliance, the Humane Society of the United States, the Humane Society Veterinary Medical Association, the Kentucky Thoroughbred Association and the Kentucky Thoroughbred Owners & Breeders.
Numerous racetracks and racing organizations, including the companies that operate the three Triple Crown tracks, support this important Federal legislation.
The National Horsemen Benevolent and Protective Association (NHBPA), however, has been outspoken and critical since the legislation was introduced and has filed a federal lawsuit to try to stop it.
Supporters of HISA say they welcome the court’s scrutiny and are confident it will withstand the challenge. “We are not at all surprised by the lawsuit,” the Jockey Club said. "We are confident that the law is constitutionally sound and legal, as it is patterned precisely after other longstanding law.”
Uninformed state regulatory bodies
Over the last five years, the legislation attracted a number of Congressional hearings with relevant parties invited to state various positions on its importance and benefits.
The serious flaws of the patchwork of uninformed state regulatory bodies with no consistency on medication rules and penalties has had dire consequences for racing. I strongly recommend that anyone involved in the industry reads the entire letter. It is compelling reading and in detail explains why the industry has the serious integrity and safety issues that put it at risk.
The Coalition for Horse Racing Integrity posted it on its site to chairman Bob Latta, chair of the Energy & Commerce Subcommittee on Digital Commerce and Consumer Protection, dated July 10, 2018, and authored by Stuart Janney, the Jockey Club chairman, and Craig Fravel, now of The Stronach Group but at that time president and CEO of Breeders ’Cup.
This letter is in response to a Congressional hearing held on June 22, 2018.
Here are some excerpts I have chosen:
The testimony provided at the hearing was at times lively, and each of the witnesses brought a relevant perspective on the subject. Not surprisingly, our opponents, choosing to defend the status quo, suggested four main points:
- The current system of state-based medication control is not broken and is in fact better than all other sports, as one witness testified.
- The rules and standards that the states employ in this area are largely similar across all jurisdictions.
- The United States Anti-Doping Agency’s (USADA’s) lack of specific equine anti-doping experience discredits its ability to manage the new entity.
- Continued, pervasive use of the powerful diuretic drug Lasix in horses on the day they race is in the best interests of racing and equine welfare.
We are writing you today to challenge these assertions with rock-solid facts.
Here are a few excellent points on the flawed current system, quoted directly from the letter:
The current system
First, as we testified, the state-based regulations for the narrow area of medication control are grossly inadequate and several levels below those of Olympic and professional sports.
A. The rule-making process is slow.
Subject to the procedures in each state for rule-making, new rules often take several months, and in some jurisdictions several years from initial proposal to implementation. Keeping a nation of 38 different racing jurisdictions in sync when each is subjected to unique procedures is an impossible objective.
B. The current system relies primarily on outdated, post-race testing and little out-of-competition testing.
Out-of-competition testing (OOCT) is the cornerstone of any anti-doping program, and less than 1% of U.S. Thoroughbred racing tests are out of competition. For comparison, in 2017 approximately 14% of British Horseracing Authority testing was out-of-competition and OOCT has been 21% in Australia, 11% in France and 10% in Hong Kong. By way of example, more than two-thirds of USADA’s tests were conducted out-of-competition,
C. There are no double-blind testing or consistent laboratory standards across the country.
Claims of laboratories’ testing proficiency that do not include double-blind, third-party, quality assurance programs designed to test the laboratories themselves should be regarded as substandard at best. Only one lab in the U.S., UC-Davis in California, is certified by the International Federation of Horseracing Authorities (IFHA).
D. There is insufficient research.
In 2017, fewer than $200,000 was dedicated towards research into drugs and other substances potentially affecting approximately 47,000 Thoroughbred racehorses and another 14,000 Quarter Horse racehorses.
The current state-by-state regulation of pari-mutuel horseracing drug testing and enforcement is uncoordinated and woefully underfunded and incapable of keeping pace with the challenges to integrity the industry continually faces.
E. There is no national investigate arm.
Within the industry, it is well known that the systems in place are not conducive to catching cheaters. An investigation conducted on behalf of the Jockey Club by 5 Stones Intelligence in 2016 found these observations:
“Violators knowingly leverage the absence of national compliance and enforcement by orchestrating comprehensive illegal doping regiments that occur while the horse is placed in strategic jurisdictional training areas and not subjected to out-of-competition testing”
“Violators are well-versed in doping methods, industry gaps in compliance and cognizant that there are minimal risks in being caught doping or abusing their horses
F. Lack of uniformity.
Our opponents at the hearing asserted that the rules regarding medication control were “essentially the same”. Nothing could be further from the truth.
Our research found only 14 jurisdictions, representing less than 50% of the pari-mutuel handle, operate under the latest controlled therapeutic medication guidelines as approved by the Association of Racing Commissioners International (ARCI).
Note by the author: Virtually all the state racing regulators are ARCI members. This means that more than 50% of U.S. handle comes from jurisdictions where regulators have not adopted their own promulgated medication rules.
G. Credibility of regulators.
The horsemen executives and the regulators at the hearing have consistently dismissed the abilities of USADA, arguably the world’s premier anti-doping agency, on the grounds of its lack of equine-related experience. This seems to indicate that the current state of regulators are experts without peer.
In fact, these regulators, or racing commissioners, govern with widely different standards. In our review of the regulations in 38 states, there are NO qualifying expertise standards, and each position is politically appointed. In just a handful of states are there requirements that a member not have an active financial interest in the business they are regulating. In one jurisdiction, an active jockey served as one of the racing commissioners, and in several others, breeders and owners are represented.
Under the new legislation, the USADA-led Horseracing Anti-Doping and Medication Control Authority board will be made up of experts in anti-doping AND horseracing, with strong conflict-of interests
Conclusion
Witnesses opposed to [HISA] stated during the hearing that they represented the majority of the racing industry in their reservations about this bill. Yet they failed to mention that [HISA] is supported some of the most prominent groups in the industry, including the New York Racing Association, Keeneland Association, The Stronach Group and the Thoroughbred Owners and Breeders Association and that track associations and organizations that support the bill represent 59% of all pari-mutuel handle generated and 63% of all Graded races run for Thoroughbreds in North America in 2017.
Besides these stakeholders, we have support from the rank-and-file members of our sport.
According to a poll conducted by Paulick Report, one of the largest online news sources in horseracing, more than 70% of respondents support [HISA]. Opponents may not want to admit it, but the majority of those involved in horseracing know that the current system is not working, and that it is time for meaningful change. That change is the Horseracing Integrity Act of 2017.
It is important to note that, since this letter was written in July 2018, the popularity of this legislation has increased immensely as indicated by the fact that, when it was voted on in the House of Representatives last September, the legislation passed by a unanimous voice vote.
Clearly, the indictments of 28 people, including Jason Servis, Jorge Navarro et al, on March 9, 2020, was a clear indication of the inability of the current decentralized state-by-state regulatory system to maintain the proper and necessary Thoroughbred racing safety and integrity protocols.
I would like to turn now to this article by Joe Drape in the New York Times of December 29.
“No one much liked the horse breeder and owner Arthur Hancock III in the spring of 1991 after he delivered what he now calls his ‘drugs-and-thugs speech’ to the University of Arizona Symposium on Racing. He had spoken openly about Thoroughbred racing’s dirty little secret: That too many of its horses were running on performance-enhancing drugs or were so drugged up on anti-inflammatories and painkillers that they were running unnaturally fast and hurting themselves, often fatally.
Nearly 30 years later, Hancock and others are finally getting help cleaning up the sport in the form of [HISA]. The horseracing measure … calls for a board overseen by the Federal Trade Commission to write rules, and penalties to be enforced by [USADA], which regulates Olympic athletes in the United States and which revealed Lance Armstrong’s cheating and issued him a lifetime suspension in 2012.
“It gives the horse industry a future,” Hancock said. “We were a rogue nation - now we are not. The changes, certainly overdue, were needed badly.”
One week ago, on March 23, one of the most respected and articulate racing industry leaders, Graham Motion, wrote this commentary in the Blood-Horse. Here are a few important insights from the article:
- “It’s no secret I have been a huge proponent for a governing body, and feel that without one, we are a rudderless ship. To me, while probably not perfect, [HISA] appears to be by far the best solution that anyone has come up with to our problems.”
- “I believe that we hit rock bottom with the federal indictments, but little has changed since. This should have been a watershed moment for our sport and, while most people are skeptical of the feds being involved, that apparently is what it took to expose our own flaws.”
- “I would like to be able to send horses to the racetrack and know that they are going to be placed in the best possible circumstances considering what we are asking them to perform. I want to believe that we are not putting them or their riders in harm’s way. I want to believe that bettors are being offered the fairest product we can offer them, and I want the spectators to be able to get all the pleasures that we do from these amazing athletes. I want to be sure that we are all competing on the same level. I don’t want to be suspicious of the trainer stabled next to me or the jockey riding his horse. I want things to be done right so I can be proud of our sport, not embarrassed or ashamed. This is what I hope HISA will do for all of us.”
Now, please take another minute or two and slowly read this last paragraph again … and read it slowly. These thoughts as articulated are not aspirational. If we want an industry to attract new participants to the sport and certainly if we want to keep our current participants, we need higher standards and much better behavior. What Motion is asking for is what we should all want. Fair enough? Thanks very much, Graham Motion.
Here is another article in the same Blood-Horse ‘Our Voices’ series that everyone should read. The March 17 commentary is by Adam Wachtel, a prominent owner and breeder who learned the business from his father, Edwin Wachtel, a successful breeder and owner in New York starting in the 1970s for a number of decades.
Wachtel has had tremendous success in the industry. Here are a few examples of his thoughts:
“We are in such great need of an independent body to develop and enforce uniform anti-doping and medication controls. I think it’s important to focus on the fact that developing uniform rules across the nation is just part of the test. Enforcing the rules will take ingenuity and dedication. It will be a difficult task.”
The article closes on this thought: “In order to save the integrity of our sport, we need a unified body to put in place universal rules to govern our sport and the enforcement mechanism to effectively police it. And only then we can finally chase those characters that don’t feel the rules apply to them out of our sport and create a product we can all be proud of as an industry.
“Let’s be sure it is not the sport of syringes and shady characters.”
Powerful relationship
As sports betting and gaming consultant Adam Bjorn, a former gaming industry manager, said, “It was turning out to be progressively certain that the 30 or more individual administrative organizations were not capable of keeping con artists out of the game and giving a level battleground to all racing members. The states basically didn’t have the cash, the complexity in testing or the desire to go after the cheaters.”
Now the Jockey Club has taken the key leadership role in advancing HISA and, along with Jeff Gural, has developed a powerful relationship with 5 Stones Intelligence, which has provided intelligence on the scope and breadth of racing’s integrity and safety exposures.
Here is Stuart Janney quoted in a recent Blood-Horse article, One year after the indictments, cheaters still prosper.
“Unfortunately, we continue to see things that look to be suspicious to us," he says. “We have been communicating with 5 Stones intelligence … and they are not indicating that we've gotten to the bottom of the bucket. To the extent that we have knowledge, we believe there is a long tail to this. Maybe people are more careful of how they are cheating, but I don't see a lot of evidence that people have stopped cheating."
And here is Jim Gagliano, president and chief operating officer of the Jockey Club:
“As the enforcement agency for drug testing and medication policy for the U.S. Olympic team and other major sports, USADA is ideally suited to work with the Horseracing Integrity and Safety Authority. USADA and the authority will ensure rigorous race-day and out-of-competition testing and modernize the regulation of Thoroughbred racing in the U.S.
“This would not have been possible without the outstanding support we received from the original members of the Coalition for Horse Racing Integrity, many of the prominent organizations in Thoroughbred racing, the leaders in the Standardbred industry, in particular Jeff Gural of the Meadowlands, and the numerous animal welfare groups that rallied their members to voice support for HISA.”
There is much serious work to be done by many industry participants to ensure that the new authority can transform our racing industry. I firmly believe that many of our industry leaders are up to the task. The industry will be transformed and improved by the hard work ahead of us with participation by all segments of the business.