Posted: April 1, 2023
The Horseracing Integrity and Safety Authority’s Anti-Doping and Medication Control Program has been suspended nationwide for 30 days given a March 31 ruling by a judge in the Northern District of Texas Court. The HISA Racetrack Safety Program, which began in July 2022, is not affected by the order.
The National Horsemen’s Benevolent and Protective Association and the state of Texas field a motion for an emergency injunction against the AMDC Program rule, which received approval from the Federal Trade Commission March 27, a few hours before the program began at racetracks that operated that Monday. The motion states that “late approval gave horsemen zero lead time before the effective date, such that many substances that were licit at the time they were consumed will still be in a horse’s system and appear on tests taken April 1, potentially resulting in disqualifications and sanctions without relief from this court.”
The motion also noted that the federal Administrative Procedure Act normally requires 30 days from approval to effective date. “The APA permits an agency to reduce or skip the 30 days with a finding of good cause; no such finding was included in the FTC’s order approving the rule,” the motion states.
District Judge James Wesley Hendrix granted the motion in part.
“When an agency issues a substantive rule—the type of rule that controls our behavior—it must ordinarily wait 30 days between when the final rule is issued and when it takes effect,” Hendrix states in his memorandum opinion and order. “This ensures that regulated parties have the time to challenge the rule’s validity or bring themselves into compliance. But the anti-doping rule took effect the same day that it was published as final. As a result, the rule (was) issued in violation of the APA, so the plaintiffs—and everyone else—will get their 30 days.
“This court enjoins implementation or enforcement of the anti-doping until May 1.”
Hendrix noted the “court notes at the outset the limited scope of this order,” and that the National HBPA and state of Texas have a separate motion for preliminary injunction already pending, which attacks the facial constitutionality of the FTC-Authority framework.”
Hendrix said the defendants—HISA and the FTC—did not attempt to show, let alone establish, good cause in opposing the motion. “In their combined 60 pages of briefings submitted in the past few days, neither the FTC defendants or the Authority defendants meaningfully addressed the plaintiff’s Section 553(d) argument (APA).”
“Obviously we’re disappointed by the decision out of the Lubbock court, but it has to do with the FTC process; it’s not strictly related to HISA,” HISA Chief Executive Officer Lisa Lazarus said, according to published reports. “As a result, we’re going to suspend operations for a few days, get ready to go again on May 1, and hand it over back to the states to essentially run the programs. We’re providing all the assistance we can to the states while respecting the federal order.”
“HISA’s goal is to serve the industry, and in order to reduce turmoil and further uncertainty in the sport over the next few weeks, we will not be appealing this ruling,” HISA said in a release. “We expect the operational impact on testing during the 30-day period to be minor. Most collection personnel who worked under the ADMC Program this past week were the same personnel in place prior to the ADMC Program’s implementation; this enables state racing commissions to revert back to their previous practices on a temporary basis for the next 30 days. Any potential ADMC rule violations resulting from positive tests taken this past week will be referred to the state racing commissions for adjudication under their previous rules.”
The ADMC Program includes a prohibition on use of Lasix in races for 2-year-olds and in stakes. The Maryland Jockey Club, which has had a prohibition on Lasix in 2-year-old races and graded stakes for years, announced that Lasix will be permitted in its non-graded stakes in April at Laurel Park.