By Joe Clabes
NKyTribune reporter
The National Horsemen’s Benevolent and Protective Association (NHBPA) and eleven affiliates have filed a lawsuit in U.S. District Court challenging the constitutionality of The Horse Racing Integrity and Safety Act (HISA).
The legislation, originally introduced by U.S. Reps Andy Barr (R-KY) and Paul Tonka (D-NY) and passed by Congress in December of 2020 as part of the Federal COVID-19 Relief Bill, is intended to bring uniformity and safety to the sport.
Peter Ecabert
NHBPA and state affiliates in Arizona, Arkansas, Indiana, Illinois, Louisiana, Nebraska, Oklahoma, Oregon, Pennsylvania, Washington and West Virginia claim the new “Authority” established by HISA represents an improper delegation of legislative authority to an unelected body, which is in conflict with the U.S. Constitution and the longstanding U.S. Supreme Court decisions. They also argue the HISA creates an unfunded mandate that will subject horse owners and trainers to millions of dollars in fees to fund the operation of the Authority and allow a nongovernmental entity to assess civil penalties, levy fines and order suspensions which have been within the purview of state racing commissions for 125 years. Lawyers with the Liberty Justice Center, a national public interest law firm that defends constitutional rights, will be representing the NHBPA and affiliates in this case.
“The National HBPA has been very vocal in its opposition for HISA, including for the fundamental constitutional flaws the lawsuit addresses,” said Peter Ecabert, General Counsel for the NHBPA.
“This is not some last-ditch, Hail Mary effort to prevent legislation we opposed from taking effect. This is about our core mission, ‘Horsemen Protecting Horsemen.’ We must do our due diligence to make sure that such a complete restructuring of our industry is not only in its best interests but also is constitutional. Throughout the shameful process of this march to pass this legislation, there was a high degree of HISA’s supporters simply telling owners and trainers to ‘trust us’ without addressing our legitimate concerns. The bill was passed without proper vetting and gives to a private authority broad government powers over our industry with little or no oversight. This legislation was ramrodded through without anyone knowing the costs of creating and maintaining this additional bureaucracy and who would pay for it.”
Chester Thomas
“Not doing our due diligence now could very well have disastrous consequences in the near and long-term future for horse racing, including for owners, trainers and horseplayers.” Ecabert added, “When a bad law is passed, you’re stuck with it. You can’t just run to your state racing commission and explain that real-life consequences hadn’t been anticipated.”
Kentucky HBPA Executive Director Marty Maline acknowledged the importance of the NHBPA course of action commenting, “While Kentucky is not a party to the suit, that does not mean there isn’t a lot of support for challenging the constitutionality of HISA. Our board members are scattered over the winter and we just felt such a serious matter needed more face-to-face discussion.”
Many of Horse Racing’s most prominent participants are behind the NHBPA effort. Kentuckian Chester Thomas, whose Allied Racing is one of the nation’s top stables and who finished third in the 2020 Kentucky Derby with Mr. Big News, said he welcomes the lawsuit and shedding light on how HISA was passed with virtually no Senate scrutiny or oversight.
“HISA only got passed by sneaky, underhanded manipulation of the political system,” said Thomas, the Hanson, Ky., entrepreneur who is a member of the Louisiana, Indiana, Arkansas, Mountaineer and Oklahoma HBPA affiliates that joined the suit. “The elites pushing this ill-advised bill knew that it could not get passed on its merits. By using typical ‘pork barrel’ 101 politics, they snuck it into the COVID relief bill — assuring its passage by not allowing senators who strongly disagreed with its blatant flaws the opportunity to debate the bill and basically daring them to vote against the stimulus package needed to help millions of Americans in this pandemic. Most Americans have no idea that this even occurred, and I can assure you that virtually no one knows what is in the bill or how it will impact them. This is a disservice to our American democratic process.”
Staton Flurry at Oaklawn. (Photo by Coady photography)
“We don’t need a federal agency — especially one created by a power grab — taking control of our industry and circumventing the regulatory authority long set in place through state racing commissions, said Staton Flurry, co-owner of 2020 Kentucky Oaks winner Shedaresthedevil and Arkansas HBPA board member. “We most certainly do not need a governing authority built on perception and more concerned with window dressing than the actual health and welfare of our horses. The fact is that great strides for the betterment of racing and the welfare of our horses have been made. It’s vital that horsemen and veterinarians have due process and continue to be involved in the regulatory system’s checks and balances. Does racing have issues? Yes. Is a federal overreach the way to fix them? No. My fear is that irreparable damage will be done to learn that the hard way.”
Bill Walmsley
Flurry’s fellow Arkansan Bill Walmsley, current President of the Arkansas HBPA and former Arkansas Court of Appeals judge, agreed concerns about HISA’s passage were well founded.
“There’s a real concern among Thoroughbred horse owners that this could put us out of business,” said Walmsley, who is also a founding member of the National Thoroughbred Racing Association. “By passing HISA, Congress picked winners and losers and put well-connected owners in charge of horse racing across the country. There was no serious debate or discussion about the costs, let alone the legality of creating a private group to control horse racing.”
Ron Moquett, longtime trainer and co-owner of 2020 sprint champion and Breeders’ Cup Sprint winner Whitmore, fears HISA’s unintended consequences.
“We’re going in blind with this legislation with a new bureaucracy created at an undetermined cost and undetermined who will have to foot the bill. There are just too many questions. My job is to take care of horses and the people who help me take care of horses. I don’t see how this does any of that. I definitely agree there are some things we should do to better the industry. But this legislation takes you down a bunch of back, curvy roads where you don’t know where you’re going. Change for the sake of change does not solve problems and is likely to create new ones.”
Ron Moquett at Oaklawn Park (Coady Photography)
“All Americans should be concerned when Congress gives power to regulate an entire industry to a private group of industry insiders,” said Brian Kelsey, senior attorney at the Liberty Justice Center. “This goes way beyond setting rules for the sport of horse racing. This is not the NBA or the NFL. The ‘Authority’ has the power to make laws, issue subpoenas and effectively tax owners with little real oversight. Placing that power in a private organization is illegal and must be stopped.”
The lawsuit, National Horsemen’s Benevolent and Protective Association v. Black, was filed on March 15, 2021, in the U.S. District Court for the Northern District of Texas.
Case filings are available here: National Horsemen’s Benevolent and Protective Association v. Black.
Featured photo: Ron Moquett, trainer and co-owner of 2020 male sprint champion Whitmore at Breeders’ Cup at Keeneland. (Coady Photography
