Two business days after the Equestrian Safety and Integrity Act was declared unconstitutional by the 5th Circuit Court of Appeals of the United States, a memo was sent to the Kentucky Riders prepared for the United States Conference. The National Horsemen’s Benevolent and Protective Association says HISA remains the “law of the land” with two state exceptions: Louisiana and West Virginia.
The memo was prepared by HBPA National Executive Director Eric Hamelback and general counsel Peter Ecabert following a Zoom meeting on November 21 of attorneys involved in the legal dispute.
“It is important that we convey the message that we believe that riders currently engaged in racing should continue to comply with HISA regulations as HISA is now the law of the country,” the memo states. . “The only exceptions are the states of West Virginia and Louisiana. However, with that said, we strongly encourage affiliates to ask your racing committee to consult with the Attorney General. State law. Having that opinion may also provide an exception.”
Noting that it’s likely the Fifth Circuit’s decision won’t become final until “approximately mid-January 2023”, the memo also acknowledges that the Federal Trade Commission or Safety Safety and Integrity Horseracing may take actions that require reconsideration of the decision or appeal of the decision, which may delay its finality.
“This kind of action will have the effect of delaying the closing time of HISA. The bottom line is that for the time being, HISA is still the law and we have to respect that law even though we have a firm opinion. from the Court that HISA is unconstitutional, unless your State Racing Commission and the State Attorney General determine the validity of HISA in the particular jurisdiction,” the memo says.
Established when the Equestrian Safety and Integrity Act was signed into federal law in 2020, the federal HISA program is responsible for drafting and enforcing integrity and safety rules. United States Thoroughbred race, which began the Track Safety Program in July. Its drug control and anti-doping program will go into effect in early 2023.
The case that led to the Fifth Circuit’s decision to disable HISA originated in Texas. As to why Louisiana and West Virginia are now exempt from HISA regulations and enforcement, the memo cites a July 26 preliminary order issued in the United States District Court for the Western District. of Louisiana after Louisiana, West Virginia, the Jockeys’ Guild and others sued HISA and the FTC.
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The injunction, which ceased HISA and FTC implementation of track safety rules, enforcement rules, and evaluation methodology rules in Louisiana and West Virginia, was reduced in scope to the Magistrate Judge’s pause order. promulgated by the District Court. Judgment by Terry A. Doughty. But with the fifth round declaring HISA unconstitutional on November 18, the ban took full effect.
Doughty’s ruling was not based on a constitutional basis. Instead, Doughty took issue with HISA’s compliance with the federal Administrative Procedure Act and what he described as outrageous in the rule-making process.
Because the Jockeys’ Guild was also a party to that lawsuit and based on ambiguity in the wording of the preliminary order, Doughty was asked by attorneys before the injunction was imposed to decide whether the order would apply. applicable to members of the Jockeys’ Guild outside of Louisiana and West Virginia. That problem is now back on his plate.
The HBPA memo says several HBPA affiliates, including HPBA Kentucky, have moved to intervene in the case and “it is likely that this matter will be heard in December 2022 with a decision before the end of the year.” .”
The memo concluded that the case “could have a nationwide effect in shutting down the majority of HISA and they would be barred from enforcing much of the safety rules currently in effect,” but it did not mention to how the non-HISA rules will be applied to Jockeys’ clan members and the HISA rules applied to non-members participating in the same race.
“We understand it’s confusing, and the intersection of cases makes it more complicated,” the memo reads.
