The appeal of a failed legal challenge to the Horseracing Integrity and Safety Act has moved closer to a conclusion after being briefed by a multitude of industry players, legislative leaders, and the parties to the case.
The suit was originally filed by the State of Oklahoma and others in U.S. District Court for the Eastern District of Kentucky where Judge Joseph M. Hood ruled that HISA was created legally.
An appeal to the U.S. Sixth Circuit Court followed, and Oct. 4 the case was scheduled for oral arguments Dec. 7 following the recent filing of amicus curiae, or "friend of the court," briefs by two groups who support HISA.
A 30-strong industry contingent filed one of the briefs. It is primarily comprised of prominent owners, breeders, and organizations: Shannon Arvin, Craig Bandoroff, Gary Barber, Jeffrey Berk, Breeders' Cup Ltd., Gary Biszantz, Donna Brothers, Joel Campbell, Mark Casse, Robert Clay, C. Steven Duncker, Terry Finley, Arthur Hancock, Seth Walker Hancock Jr., Staci Hancock, Fred W. Hertrich III, Ian Highet, Barry Irwin, Stuart S. Janney III, The Jockey Club, Bret Jones, Anthony Manganaro, Christopher McCarron, Daniel Metzger, Chauncey O. Morris, J. Michael O'Farrell Jr., Thomas J. Rooney, George Strawbridge, Vincent Viola, and Charlotte Weber.
On the political side, a bipartisan amicus brief was filed on behalf of Senate Minority Leader Mitch McConnel (R-KY) and U.S. Representatives Andy Barr (R-KY), and Paul Tonko (D-NY). They led the final push to pass HISA in Congress, establishing the Horseracing Integrity and Safety Authority (also known as HISA) under the supervision of the Federal Trade Commission.
"Plaintiff's primary issue with the legislation," Hood wrote in his June 2022 decision, "is that the FTC's rules will be based on proposed standards offered by the Authority, which Plaintiffs claim the FTC is required to adopt, making the FTC subordinate to the Authority."
Hood rejected that argument, holding the legislation renders the Authority subordinate to the FTC. Hood also ruled that the law is not an unconstitutional delegation of power to the FTC by Congress; that the Authority is not an unlawful exercise of self-interest; that the Authority's enforcement powers are lawful; and that HISA does not violate a constitutional prohibition against Congress requiring states to fund and carry out the Authority's operations.
The decision was the second setback for opponents of HISA in the federal courts. A suit brought on constitutional grounds in the Eastern District of Texas by the National Horsemen's Benevolent and Protective Association and affiliated HBPAs was dismissed in March by U.S. District Judge James Wesley Hendrix. An appeal of the lower court decision to the U.S. Fifth Circuit Court of Appeals has been briefed and argued, and the parties await a decision.
Both cases could potentially land in the U.S. Supreme Court.
