Daily Racing Form

National HBPA and 11 Affiliates File Lawsuit Challenging Horse-Racing Oversight Board

March 15, 2021

(Daily Racing Form) – A national horsemen’s organization and a number of its state affiliates have filed a lawsuit challenging the regulatory power of a horse-racing oversight board created by federal legislation late in 2020.

The lawsuit, filed on Monday in the U.S. District Court for the Northern District of Texas, alleges that the creation of the oversight board violates the “nondelegation doctrine” of the U.S. Constitution by granting power to a private company that can only be delegated to a government entity. It further alleges that the legislation grants the board’s supporters the power to control its appointments, in violation of the Constitution’s “appointments clause.”

The lawsuit, filed by the National Horsemen’s Benevolent and Protective Association and 11 of its local affiliates, is the first serious legal challenge to be mounted against the oversight board, which is being called the Horseracing Integrity and Safety Authority (HISA). The legislation creating the board passed late last year as part of an omnibus spending package, with the support of a wide-ranging group of powerful racing constituents, including a rival group to the National HBPA, the National Thoroughbred Horsemen’s Association.

The legislation created a private, non-profit company that will be overseen by the Federal Trade Commission (FTC). It has the power to raise funds for its operations by authorizing assessments on racing participants, and the legislation empowers the authority to draft and promulgate rules pertaining to medication and drug use, testing, and safety measures at racetracks.

Prior to the bill being passed, supporters of the legislation announced seven appointees to the authority’s nominating committee, which will be in charge of making appointments to the authority’s board. The seven members of the nominating committee are all listed as defendants in the lawsuit, along with the acting commissioners on the FTC.

The affiliates who are listed as plaintiffs include HBPA organizations in Arizona, Arkansas, Indiana, Illinois, Louisiana, Nebraska, Oklahoma, Oregon, Pennsylvania, and Washington, along with an affiliate at Mountaineer Park in West Virginia. Notably, HBPA affiliates in Kentucky and Florida are not listed among the plaintiffs.

Peter Ecabert, the general counsel for the National HBPA, said that the board of directors of the national organization had voted “unanimously” to file the lawsuit, but that some affiliate organizations had yet to put a vote to their boards prior to the lawsuit being filed.

“Accordingly, National [HBPA] together with the affiliates who were able to quickly secure formal approval moved expeditiously as named plaintiffs to save horsemen from the irreparable harm that this illegal law will cause,” Ecabert said, in a written response.