I. INTRODUCTION
The establishment of the Horseracing Integrity and Safety Authority (“HISA”) marked a major change in the regulation of safety and anti-doping in the horseracing industry. HISA recently hired its Chief Executive Officer (Lisa Lazarus, who has extensive equestrian experience); its registration requirements & racetrack safety rules were implemented on July 1, 2022; and its Anti-Doping and Controlled Medication Protocol will be finalized over the next 6 months and implemented on January 1, 2023. With the need for the horseracing industry to adapt to these monumental changes, the Law Offices of Howard L. Jacobs provides this comprehensive summary of the creation and responsibilities of HISA; the registration requirements & racetrack safety rules implemented by HISA and effective on July 1, 2022; and the HISA Anti-Doping and Controlled Medication Protocol that will be implemented on January 1, 2023.
II. CREATION OF HISA
A. The Legislation that Created HISA
In July 2015, Congressman Andy Barr (R-KY) and Congressman Paul Tonko (D-NY), co-chairs of the Congressional Horse Caucus, introduced the bipartisan “Thoroughbred Horseracing Integrity Act of 2015” with the hope of establishing an independent, nongovernmental horseracing anti-doping and medication control authority. The bill aimed to bring uniformity to horseracing’s medication policies and practices, an industry that operated for centuries under a fractured patchwork of conflicting and inconsistent rules across 38 separate jurisdictions. However, the 2015 bill only garnered 88 co-sponsors and failed to reach the House floor for committee hearings and deliberation.
In May 2017, Barr and Tonko introduced similar legislation titled the “Horseracing Integrity Act of 2017”. Backed by hundreds of industry leaders and thousands of members from major constituency groups, the 2017 bill received considerably more support at the congressional level than its predecessor, garnering 131 bipartisan co-sponsors and even going to hearings before a House subcommittee. But despite its widespread support, the 2017 bill failed to reach the Senate. Many attributed the failure of both the 2015 and 2017 bills to the lack of support from then-Senate Majority Leader Mitch McConnell (R-KY) and industry tycoon Churchill Downs Incorporated—the most profitable track owner in the horseracing industry. And, perhaps, for good reason—two, to be exact. First, during McConnell’s tenure, nothing got through the Senate without McConnell’s blessing. Second, it has been widely reported that McConnell would not support a bill establishing a centralized horseracing anti-doping and medication control authority unless Churchill Downs was on board. Those in favor of the bills speculated as to whether the fact that Churchill Downs’ majority shareholders had contributed over $7 million to McConnell’s campaign committee and Republican PACs since 2010 played a role in McConnell’s opposition. Speculation aside, the breakdown of the 2015 and 2017 bills made clear that the road to real change in the horseracing industry went through Churchill Downs.
In 2018 and 2019, the sport endured back-to-back years of scandals, deaths, and disqualifications that, to many, signaled “the beginning of the end for horse racing.” Then, in March 2020, the call for reform in horseracing grew louder than ever after the FBI indicted 27 individuals in connection with doping in horseracing. The indictments, which consisted of some of the biggest names in horseracing, revealed grisly details about a massive international doping scheme that sent shockwaves throughout the industry. But just as horseracing had appeared to hit rock bottom, change was on the horizon.
In September 2020, McConnell, roused by the FBI’s findings, announced that he was sponsoring the “Horseracing Integrity and Safety Act of 2020”. The latest edition of the long-pursued legislation was a near replica of its previous counterparts, however the most significant change was that the United States Anti-Doping Agency (“USADA”) was no longer the governing authority in charge of the Board of Directors, and was no longer the default anti-doping and medication control enforcement agency. Rather, USADA was to be hired as the enforcement agency pending a contractual agreement—which, in the end, never happened. Interestingly, for reasons unknown, Churchill Downs did not support any of the bills in which USADA was the delegated governing authority and enforcement agency. Once USADA was removed from the Board and only involved on a per-hire basis, Churchill Downs finally backed the legislation. In any event, with Churchill Downs on board and, in turn, Senate Majority Leader McConnell, Congress passed the bill. In December 2020, the “Horseracing Integrity and Safety Act of 2020” was signed into law “[t]o improve the integrity and safety of horseracing by requiring uniform safety and performance standards, including a horseracing anti-doping and medication control program and a racetrack safety program to be developed and enforced by an independent Horseracing Integrity and Safety Authority, and for other purposes.”
B. Who is HISA and What Are HISA’s Responsibilities?
When the Horseracing Integrity and Safety Act of 2020 was signed into federal law, it established the Horseracing Integrity and Safety Authority (“HISA”), “a private, independent, self-regulatory, nonprofit corporation with responsibility for developing and administering an anti-doping and medication control program for covered horses, covered persons, and covered horseraces.” Under the Act, “covered horses” means any Thoroughbred, Quarter, or Standardbred horse that participates in horseracing until it retires; “covered persons” means all trainers, owners, veterinarians, and persons, employees, and support personnel licensed by a State racing commission or otherwise in the care of covered horses; and a “covered horserace” means any horserace with a substantial relation to interstate commerce. As such, HISA is essentially horseracing’s governing body, created to implement, for the first time ever, a national, uniform set of rules applicable to every thoroughbred racing participant and racetrack facility.
HISA is governed by its Board of Directors, which is made up of nine members: five of which are independent members from outside the equine industry, and four of which are industry representatives selected from different equine constituencies. In addition, HISA is comprised of two programs, each governed by its own standing committee: (1) the Racetrack Safety Program, which goes into effect July 1, 2022; and (2) the Anti-Doping and Medication Control (“ADMC”) Program, which goes into effect January 1, 2023.
The Racetrack Safety Program aims to implement “operational safety rules and national racetrack accreditation standards that seek to enhance equine welfare and minimize equine and jockey injury.” To achieve this, HISA plans to expand veterinary oversight, impose racetrack surface maintenance and racetrack testing requirements, regulate riding crop use, and implement voided claim rules, among other important measures all geared towards improving safety for horses and jockeys. According to HISA, the importance of the Racetrack Safety Program to HISA’s overall mission to protect horses, athletes, and the integrity of the sport “cannot be overstated,” as expanding HISA’s mandate to include racetrack safety played a vital role in finally getting the legislation to pass.
The ADMC Program is charged with creating a centralized testing and results management process with uniform penalties for integrity violations. The ADMC’s rules and enforcement mechanisms are to be administered by the Horseracing Integrity and Welfare Unit (“HIWU”), a new, independent agency established in partnership with Drug Free Sport International (“DFS”). The HIWU will educate stakeholders on the new process, accredit laboratories, oversee testing, investigate potential integrity violations, and prosecute rule breaches.
With each program either already in effect or taking effect in the near future, it is imperative that riders, jockeys, trainers, and equine enthusiasts everywhere familiarize themselves with HISA’s rules and regulations.
III. JULY 1, 2022 REGISTRATION REQUIREMENTS & RACETRACK SAFETY RULES
A. July 1, 2022 Registration Requirements
HISA’s Racetrack Safety Program officially launched on July 1, 2022. With it came registration requirements for virtually all thoroughbred horseracing participants, including trainers and horses in their care. Per HISA’s guidelines, all racing participants, trainers, and covered horses must have been registered with HISA before the July 1, 2022 launch date to continue racing in the U.S.
To register with HISA, participants (i.e., “covered persons”) are required to register through HISA’s website where they agreed to be bound by HISA’s rules, standards, and procedures and provided, at minimum, mailing addresses, contact information, and any racing licenses containing identification information. Jockeys are required to provide certification of fitness to participate in racing, including results of a physical examination and baseline concussion test within the last 12 months. Trainers and owners, in addition to registering themselves, are required to register all horses in their care and ensure they could provide medical records to HISA if requested. Horses need only be registered once by either their trainer or owner, and it is the responsibility of their trainer or owner to change the horse’s status upon retirement.
While HISA issued a string of announcements regarding its horseracing requirements on various platforms, it is likely that some participants failed to register either themselves or their horses ahead of the July 1, 2022 deadline. As of June 27, 2022, a total of 38,416 participants, including 18,400 covered persons and 20,016 covered horses, have registered with HISA. HISA has urged all remaining, unregistered participants to register as soon as possible “to avoid any disruption in their ability to race.”
B. Racetrack Safety Rules
HISA’s Racetrack Safety Rules have already been approved and promulgated by the Federal Trade Commission, and became effective as of July 1, 2022. The key provisions from the Racetrack Safety rules are summarized below:
i. Racetrack Accreditation Standards/Requirements
Under the Racetrack Safety Rules, any racetrack accredited by the National Thoroughbred Racing Association as of July 1, 2022, will be granted “interim Racetrack Safety Accreditation,” whereas non-accredited racetracks will be granted “provisional Racetrack
Safety Accreditation.” To receive official accreditation from HISA, all racetracks must pass an “Accreditation Assessment”, which includes review of racetrack facility documentation/records and an on-site inspection by the Racetrack Safety Committee. HISA accreditations are effective for 3 years.
ii. Racetrack Safety and Welfare Committee
HISA’s Racetrack Safety Program requires the racetracks in each state to form a “Racetrack Safety and Welfare Committee” that is responsible for reviewing the circumstances around fatalities, injuries, and racetrack safety issues to mitigate possible contributing risk factors, including interviewing riders, watching race footage, and evaluating training and examination records, among other duties. Each Safety and Welfare Committee must include, at a minimum, the following members: (1) Regulatory Veterinarian; (2) Association Veterinarian; (3) Medical Director; and (4) Safety Officer. While each member has an exhaustive list of specific duties under the Racetrack Safety Program rules, all are geared towards improving safety for all covered horses and persons.
iii. Data Collection, Recordkeeping and Submission; Accident Reporting.
HISA is also implanting data collection protocols for all covered racetracks “to assist in the proper and consistent maintenance of all racing and training surfaces.” Under the new program, racetracks are required to keep surface maintenance records, surface material test records, and daily surface testing data. Any test results must be submitted to HISA within one week of the results. Racetracks are also responsible for collecting and reporting data associated with all incidents that result in injuries to covered persons sustained on the racing grounds within 10 days of such incidents.
iv. Continuing Education
The Racetrack Safety Program is requiring virtually all covered persons under the Act to complete continuing education on an annual basis. For example, Veterinarians, Stewards, Medical Directors, Trainers, Owners, Racetrack Surface Managers, Jockeys, Equipment Managers, and several others, must comply with these obligations. Continuing Education requirements range from 2-8 hours, and may require completing a written exam or field test depending on the nature of the covered person’s responsibilities.
v. Prohibited Practices and Requirements for Safety and Health of Horses
HISA, has identified the following practices, inter alia, as expressly prohibited: (1) any procedure masking injury; (2) use of shock wave therapy or surgical/chemical neurectomy to desensitize limbs; (3) thermocautery; (4) use of any device to deliver an electrical shock to the horse (e.g., cattle prods, batteries); and (5) use of therapeutic devices to produce an analgesic effect within 48 hours of training or racing. Covered Persons should note that violating HISA’s prohibited practice rules shall result in a 10-year loss of eligibility for first-time offenses, and a permanent loss of eligibility for any subsequent violation.
Considering the breadth and scope of HISA’s Racetrack Safety Rules, it appears HISA is determined to ensure its Racetrack Safety program fulfills its purpose to establish specific safety rules and requirements designed to enhance safety in horseracing.
IV. HISA’s ANTI-DOPING AND CONTROLLED MEDICATION PROTOCOL
A. Proposed Draft of the Anti-Doping and Controlled Medication Protocol
HISA’s ADMC Program is in the process of drafting its Anti-Doping and Controlled Medication Protocol (hereinafter the “ADMC Protocol”). Subject to the Federal Trade Commission’s approval, the ADMC Protocol will become effective on January 1, 2023. Currently, the revised, proposed draft of the ADMC Protocol is available on HISA’s website for public comment. HISA has encouraged equine constituents to submit feedback on the proposed draft of its Protocol in an effort to balance the interests of covered participants and HISA’s enforcement committee, and ultimately create a set of rules that best protects the integrity of horseracing.
Currently, the ADMC Protocol is divided into five chapters: (1) the purpose, scope, and organization of the Protocol, (2) the Prohibited List, rules of proof, and testing and investigations, (3) the Equine Anti-Doping Rules (EAD Rules), (4) the Equine Controlled Medication Rules (ECM Rules), and (5) other violations and general procedure/administration. The EAD Rules and ECM Rules are intentionally kept separate to reflect HISA’s view that violations of such rules should be “separate and distinct from each other.” The EAD Rules address “Banned Substances and Banned Methods”, which are substances/methods that HISA has determined should never be administered to a horse under any circumstances because “they serve no legitimate treatment purpose.” The ECM Rules, on the other hand, address “Controlled Medication Substances and Controlled Medication Methods”, which are substances/methods that HISA has determined to have “appropriate and therapeutic purposes.” However, participants should be aware that Controlled Medication Substances/Methods, under the Protocol, are still strictly prohibited during the Race Period.
The ADMC Protocol operates to deter and punish the improper administration or application of Prohibited Substances and Prohibited Methods to Covered Horses. As such, a key provision of the Protocol mandates that HISA has the authority to conduct testing on any Covered Horse both in and out of competition, and at any time or place. Testing is to be in accordance with the “Testing and Investigation Standards”, which appears to be a near-replica of the World Anti-Doping Agency’s standards. Samples collected under the Protocol will be analyzed by an HISA-approved laboratory to determine whether the presence of a Prohibited Substance/Method is detected, and/or whether there is a potential Controlled Medication Rule violation.
Several anti-doping rule violations (“ADRVs”) have been identified under the draft ADMC Protocol. Among the enumerated violations, are the following: (1) Presence of a Banned Substance (in any amount); (2) Use, Possession, or Administration of a Banned Substance/Method; (3) Evading or Refusing Sample Collection; (4) Tampering with any part of the Doping Control process; (5) Aiding, abetting, or covering up an ADRV by another person; and (6) Retaliating against others for reporting potential violations.
The Equine Controlled Medication Rules describe virtually identical conduct as violations of the Protocol, with minor variations, such as Presence of a Controlled Medication on Race Day, and Use/Attempted Use of a Controlled Medication Substance/Method during the Race Period or in a manner contrary to horse welfare (i.e., not diagnosed/recommended by a veterinarian and/or against the best interests of the horse). Aside from that, the violations are essentially indistinguishable.
B. Adjudication Process and Possible Sanctions
As mentioned above, the HIWU will enforce the ADMC Protocol. Like the Racetrack Safety Rules, the ADMC Protocol applies to any horserace with a substantial relation to interstate commerce or is the subject of betting/wagers, and to Covered Horses/Persons. Under the Protocol, Covered Persons are required to “cooperate promptly and completely with [HISA] in the discharge of their responsibilities,” including any obligations related to HISA’s testing program, reporting requirements, and investigation of Protocol violations. The Protocol will not apply retroactively to any violations or matters that precede its effective date, January 1, 2023. While the Protocol is to be interpreted as an “independent and autonomous text and not by reference to existing law or statutes”, it also provides that the World Anti-Doping Code (Code), any comments/annotations to the Code, and any case law interpreting and/or applying the Code, may be considered by hearing panels adjudicating cases relating to the Protocol as deemed appropriate.
With respect to proving any alleged ADMC Protocol violation, HISA bears the burden of proof. To establish a violation, HISA must prove that violation has occurred “to the comfortable satisfaction of the hearing panel.” Sanctions for Protocol violations range from disqualification of race results to a period of ineligibility ranging from 18-months to a lifetime ban, or to financial penalties ranging from USD $250 to $100,000, or 10% of the gross purse (whichever is greater). Sanctions may be eliminated if a Covered person can establish they bear “No Fault or Negligence” for the charged violation, and may be reduced if the accused establishes “No Significant Fault or Negligence”. HISA has also included provisions allowing Covered persons to reduce their sanctions by providing “Substantial Assistance” in discovering an ADMC Protocol violation or sport-related criminal/disciplinary violation by another person, or by voluntarily admitting to a violation and accepting a sanction in the absence of other evidence or at the start of the investigation. During any provisional suspension or period of ineligibility, covered persons and horses are prohibited from participating in sport, but otherwise remain subject to ADMC testing.
Persons alleged to have committed an ADMC Protocol violation are entitled to a hearing before an impartial arbitrator (or a panel of three arbitrators, if requested by HISA). Arbitrators will be selected from a pool of 10 arbitrators appointed by HISA. A reasoned decision is to be issued within 14 calendar days of the conclusion of the hearing. An expedited hearing option is available where a covered horse or person is likely to participate in a covered horserace within 45 days. If a violation is confirmed, HISA will publicly disclose the names of the individuals and horses implicated by the sanction, the rule that was violated and prohibited substances/methods involved, the consequences imposed, and any reasoned decision, including applicable appeal or review rights. All decisions constitute a “final civil sanction” subject to appeal and review in accordance with the provisions of § 15 USC 3058, which provides that civil sanctions may be reviewed by an administrative law judge.
Though the ADMC Protocol is still in its developing stages, participants should be aware that the Protocol is being written to reflect the following principles:
(1) that Covered Horses should only compete when they are free from the influence of Prohibited Substances and Prohibited Methods that may affect their performance;
(2) that Covered Horses that are injured or unsound should not train or participate in Covered Horseraces, and that medications, other foreign substances, and treatment methods that mask or deaden pain must not be used to enable injured or unsound horses to train or race;
(3) that rules, standards, procedures, and protocols regulating medication and treatment methods for Covered Horses and Covered Horseraces should be uniform and should be administered uniformly throughout the USA;
(4) that the administration of medications and treatment methods to Covered Horses should be based on an examination and diagnosis that identifies an issue requiring treatment for which the medication or method represents an appropriate component of treatment, and the amount of therapeutic medication that a Covered Horse receives should be the minimum necessary to address the health concerns identified during the examination and diagnostic process; and
(5) that the welfare of Covered Horses, the integrity of the sport of horseracing, and the confidence of its stakeholders (including the betting public) require full disclosure to regulatory authorities regarding the administration of medications and treatments to Covered Horses.
While there may be additional changes to the Protocol before the effective date, gaining an understanding of HISA’s key objectives will ensure participants are better prepared for the finalized regulations on January 1, 2023.
V. CONCLUSION
The passage of the Horseracing Safety and Integrity Act marked a major turning point for the horseracing industry. As the legislation’s sweeping changes come into effect, Covered Persons should do everything in their power to familiarize themselves with HISA’s Racetrack Safety Program Rules and ADMC Protocol—especially when one considers the sheer volume of testing that HISA will have to conduct. In 2021, there were 37,467 thoroughbred horseraces run in America on 4,072 different race days, with over 276,000 starts by all horses, an increase of over 20% from the previous year. While HISA and DFS have not published a planned testing strategy for the upcoming year, DFS conducts 80,000 tests per year across various sports through its other partnerships. In contrast, USADA collects approximately 11,000 samples per year.
Using those figures as a benchmark, it is safe to say that DFS will likely be collecting thousands of samples in horseracing alone going forward. The implementation of a new and rigorous drug testing program in any professional or elite-level sport poses a significant risk for athletes, as new regulations combined with a sharp uptick in the number of samples collected often times creates an influx of positive test results and resulting sanctions. An example of this can be seen in the implementation of the UFC’s drug testing protocol in 2015: over 30 fighters were suspended within the first two years of the program’s installation—which accounts for roughly 25% of all suspensions in the program’s seven-year history. Thus, Equine athletes, owners, trainers, and related personnel should take care to understand what constitutes a violation of the ADMC Protocol—most of which are strict liability violations—and, in turn, avoid an early suspension.
Our office has over 20 years’ experience in anti-doping and sports safety / disciplinary matters, representing hundreds of athletes in a wide variety of forums in the United States and around the world. We are available to consult with any equestrian athletes, owners, trainers, and related personnel in navigating HISA’s new and rigorous regulations and rules.