edit. Near-certain passage of Horseracing Integrity and Safety Act raises host of questions Matt HegartySep 16, 2020 Share LEXINGTON, Ky. – The federal bill putting in place a national regulatory body for Thoroughbred racing is considered a near certainty for passage later this year, generating timely questions about how the body will function and deliver on its promise of improving the industry’s drug-testing abilities and the safety of its athletes. The bill, called the Horseracing Integrity and Safety Act, was introduced in the Senate last week by Sen. Mitch McConnell, the Majority Leader. On the same day, a House committee that had not called for a vote on similar legislation for the past five years swiftly approved its passage on a bipartisan basis. Officials who support the effort are now confident the legislation will be approved by the end of this year’s lame-duck session, if not sooner. “I don’t like to quote odds for anyone, but I rate its chances better than they’ve ever been,” said Bill Lear, vice chairman of The Jockey Club, which has made passage of a federal bill overhauling the sport’s regulation a priority since 2014. “I still think there are lots of hurdles to overcome, but I do think with the bipartisan support in both houses, we are in a position where we should get it done by the end of the year.” While racing officials who have worked on the bill understand how the regulatory body will be structured and how it will function, the legislation was changed substantially in the past six months as supporters attempted to bring opponents over to their side. As a result, many in racing have little knowledge about the details of a bill that, if enacted, will likely uproot a century of regulatory practices and lead to a dramatic realignment of the industry’s alphabet-soup organizations. The industry will have at least a year to work through those issues. The bill states that the “program effective date” will occur at the “earlier of” Jan. 1 of the second year of the legislation’s enactment or 540 days after its enactment. So the earliest the industry will be operating under the aegis of the new regulatory body will be Jan. 1, 2022. Under the bill, national policies on medication use, drug-testing protocols, lab standards, veterinary oversight, whip use, and a score of other topics will be promulgated by a non-profit, private company called the Horseracing Integrity and Safety Authority. The organization has already been registered as a Delaware non-profit corporation by the bill’s supporters, according to officials, in anticipation of the legislation being enacted. The authority will have a nine-person board, its members selected by a panel that will likely be named soon, according to officials. The bill requires the panel to select five “independent” directors with no ties to the racing industry; the other four will be allowed to have experience in the racing industry but will face conflict-of-interest restraints that will prohibit any financial involvement in the sport. It’s likely the board will be selected prior to enactment as well. The board will first be tasked with setting up two seven-member standing committees. One will be called the Anti-Doping and Medication Control Standing Committee, chaired by an independent member of the authority board. The other will be called the Racetrack Safety Standing Committee, chaired by an industry member of the board. According to Lear, it’s expected that the two standing committees – which must have four independent members and three members with racing experience, counting the chairmen – will bear the brunt of the policy-making work in the lead-up to the effective date. After the committees have devised their policies, they will be sent up to the full authority board for approval. That sounds a lot like a state racing commission writ large. So will racing commissions become unnecessary once the authority begins operating? No, say the bill’s supporters. State racing commissions will remain in place in all racing jurisdictions after the national authority begins operations, and they will continue to issue licenses, adjudicate minor rule violations, conduct local investigations, select racing laboratories from an approved list, and collect post-race samples. “There’s still a lot for racing commissions to do,” Lear said. “I think there are some people who think all they do is medication and drug-testing. There are a whole range of things the racing commissions will still govern that are outside of medication controls, and the bill allows elements of the implementation to be delegated to state racing authorities by contract.” But there also is a long list of existing industry organizations whose work will be supplanted if the bill is enacted. The National Thoroughbred Racing Association runs an accreditation program for racetracks; its operations will likely be subsumed by the new authority. The Association of Racing Commissioners International, an umbrella group for state racing commissions, issues model rules for its members to adopt; there would be significant overlap with the new authority, paring its responsibilities. The Thoroughbred Safety Coalition, which was launched last year to press for new medication and safety-related policies, would seem to be nothing more than an advocacy group under the structure (a spokesman for the group said that it is “too soon to say” what would happen to the TSC if the bill is enacted). Then there is the Racing Medication and Testing Consortium, an industry-funded organization that devises model rules for medication use, administers scientific studies to set thresholds and withdrawal times, and accredits laboratories to the standards it has devised, among other functions. Those all appear to be the purview of the new national regulatory body under the bill, though it also could contract out those functions. “Obviously, I think everyone out there whose work might be taken over by the new body is saying that they believe there is a way for their organization to persist in this brave new world,” said Dr. Mary Scollay, executive director of the RMTC. “I’ll take the same position.” New body will need funding Supporters of the bill are counting on the outright retirement or the downsizing of existing organizations, because the national regulatory body will need funding to operate. If outlays by existing industry constituencies decline as a result of the redundancies, it will be easier to sell those constituencies on shifting those funding streams to the national authority, with little blood loss. Under the bill, the primary source of funding will be contributions from states based on the number of starts made in their jurisdictions, with states free to develop their own funding mechanisms. The authority also will have the ability to collect fees from all “covered persons” in racing, a term that applies to anyone whose goods and services are used in the conduct of races covered by the Interstate Horseracing Act. Thirdly, the authority will be able to collect “fines and forfeitures” from penalties. A fear among horseplayers is that states, under the lobbying of tracks and horsemen who are already operating on thin margins, will look to the takeout to raise their shares of the authority’s budget. There’s nothing in the bill to stop this, according to officials. Lear said that he, “personally, would not like to see that.” If states refuse to send their share on, or if constituencies within the state cannot agree on a proper funding formula, the authority has the power to set the formula for the jurisdiction and collect the money on its own, according to Lear. In that case, the costs will likely be “more significant” than the proportionate share the state was allotted, Lear said. A number of racing officials, especially those associated with horsemen’s groups, believe that the funding mechanisms are going to be a hard-fought battle in the lead-up to the effective date. (The bill does allow the national authority to borrow funds for its initial operations.) “We haven’t been told what this is going to cost, and honestly we don’t know if the industry can afford it,” said Alan Foreman, chief executive officer of the Thoroughbred Horsemen’s Association, which was one of the organizations that recently flipped to backing the bill. “That’s going to be a major source of friction.” Eric Hamelback, executive director of the National Horsemen’s Benevolent and Protective Association, which remains opposed to the bill, said he fears that some tracks with marginal racing operations – like those in states where casino licenses are restricted to racetracks – will lobby their state legislatures to drop racing. “So now we’re talking about all these smaller tracks at casinos just folding up operations because they don’t want to pay anything out of their pocket for regulation,” Hamelback said. “How is that a good thing?” USADA to enforce drug policies While the authority’s standing committees and full board will be responsible for approving national policies, enforcement of the industry’s medication and drug policies will be contracted out to the United States Anti-Doping Agency, a private non-profit company that performs a similar role for the U.S. Olympic team and the UFC professional-fighting league. A role for USADA has been anticipated since the beginning of the effort to pass legislation. Travis Tygart, chief executive officer of the company, was the keynote speaker at The Jockey Club’s Round Table conference in 2012, before the organization decided federal legislation would be necessary to unify all racing jurisdictions under one set of rules. Since that time, the USADA has always been part of the conversation when contemplating “independent” enforcement of drug rules. But earlier iterations of the legislation gave USADA a much more powerful role than it has in the current bill. In some previous versions of the bill, USADA was given the authority to not only enforce the rules, but also to make them, a capability that made many racing constituents uneasy due to USADA’s inexperience in dealing with drug-testing programs for equines (notably, USADA plays no role in the drug-testing or enforcement programs for the U.S. Olympic equestrian team). Officials who have been involved in a year-long process to gain consensus on the new bill said that USADA appears to have made enormous strides over the past five years in grasping the differences between human-based testing programs and equine-based programs. The Jockey Club set up a meeting earlier this year with Tygart after a Jan. 28 Congressional hearing on an earlier version of the bill so that those on the fence could hear him speak and ask questions. “He was up there for hours and made a great case,” said one attendee who did not want to be identified because of the private guest list for the meeting. “I think a lot of the rough edges got softened.” Under the amended bill, USADA will devise out-of-competition testing protocols and direct all of the industry’s drug-testing efforts, including an expansion of out-of-competition testing. USADA also will implement “intelligence-based testing,” which is a term used for combining mathematical analysis with investigatory findings to concentrate drug-testing efforts where they are most likely to catch cheaters and act as a forceful deterrent. Separating USADA from the development of the industry’s medication policies was an important issue to several racing constituencies, most notably Churchill Downs Inc., according to officials. Churchill officials had remained opposed to the bill through at least the end of last year, but the company jumped on board after recent amendments provided a “clarity of roles between those enforcing and administering the rules and regulations, versus those that are creating the rules and regulations,” according to Bill Carstanjen, the company’s chief executive officer. Not coincidentally, McConnell, who lives in Louisville, had remained mum on the bill for five years, concurrent with the time that Churchill opposed the bill. Consensus reached this summer According to officials, the critical mass of industry consensus on the new bill was reached earlier this summer. McConnell was slotted to announce his plans to introduce the legislation at this year’s Round Table, according to officials, but when the conference had to be converted to a virtual event because of the pandemic, the announcement was rescheduled for Derby week. It was made on Sept. 1. Since then, the effort has rolled rapidly downhill, despite pockets of resistance still remaining in the industry, especially among those groups that the coalition effectively sidelined, such as the National HBPA. The House Energy and Commerce Committee, which passed the bill last week, is chaired by Rep. Frank Pallone of New Jersey. Previously, Pallone had never called for a vote on similar bills in the five years they had sat in the committee. Dennis Drazin, president of a horsemen-led company that operates Monmouth Park in New Jersey, has known Pallone for 45 years, since both were young lawyers in New Jersey. Pallone worked at the law office owned by Drazin’s father prior to being first elected to office in 1988. “Once McConnell got involved, Frank was pretty honest with me,” said Drazin, who had testified against the federal legislation before throwing his support behind the bill two weeks ago. “He told me, ‘It’s time to make a deal. It’s time to move if you want to be at the table.’ ” Although Drazin said that raceday Lasix use remains a “critical issue” for his membership – the bill requires a three-year study of the issue but nearly all officials believe that the medication will be banned on race day eventually – he said that the amendments to the bill creating a second focus on racetrack safety convinced him that the effort could lead to positive change in the industry. Although he has concerns about how the authority will be funded, he also conceded that the opponents of raceday Lasix use have a better argument to give to the public than its supporters. “No matter where you sit on the issue, the public thinks we’re better off without raceday medication,” he said. “You can’t ignore that. So it’s time to move on. The bill is going to pass, and it’s time to get on board and move forward.”