The opposition to the new federal racing law is so intense and counterproductive it is even preventing horsemen’s groups from acknowledging good news about horse safety and sharing it with the wider world.
Andrew CohenUpdated:Dec 16, 2024

Here’s one headline from last week’s big news: “Racing fatality rate at U.S. tracks at all-time low in 2024”. Here is another: “HISA boss says horse deaths in races are down 33% this year.” That’s a big deal, no? I mean, it’s wonderful news, isn’t it? But the National Horsemen’s Benevolent and Protective Association, the horsemen’s group that has sued federal regulators, made no mention of the latest fatality statistics on its website. Nor did the United States Trotting Association, the Standardbred operation which routinely publicizes anti-HISA views. It’s fair to say the news was significantly under-covered both within and beyond the industry.

There are a few possible reasons for this. First, the news came not from a press release issued by federal regulators but from HISA chief Lisa Lazarus during last week’s global conference in Arizona. Maybe there are some organizations and outlets that are waiting for a more formal announcement by HISA folks. Or maybe some organizations and outlets don’t want to spread this good news to their constituents because it undermines one of their main political arguments against HISA. It’s harder to argue that the big bad federal government is ruining horse racing when the statistics keep coming back saying the sport is safer and safer, right?

Another reason has to do with the methodology. The figures Lazarus cites represent only racing fatalities, not training fatalities, so it’s possible the news isn’t as rosy as it appears to be at first. Lazarus told her audience last week that HISA has begun collecting data on training fatalities and will soon include those figures in their regular reports. But there is no reason to think there has been a sudden surge in training fatalities during a period in which there was another sharp decline in racing fatalities. So why wasn’t the announcement of the latest fatality figures front-page news on every horse racing site? Why was it ignored by the mainstream media?

Here is how Matt Hegerty at the Daily Racing Form frames the issue: “The drop in the fatality rate over the past 15 years has been one of racing’s most least-publicized success stories, with spates of injuries at tracks now gaining more attention, not less, than those that occurred 20 years ago, due almost entirely to worldwide cultural trends that have elevated issues related to animal welfare.” This “most least-publicized success story” represents a continuing marketing, promotional and advertising failure on the part of the Thoroughbred industry, which should be shouting the news Lazarus delivered to the world beyond racing.

It’s a simple message. “We are making Thoroughbred racing safer by making everyone in the industry more aware of and responsible for the care of their horses. We are getting tougher in the way we identify and enforce illegal doping and other drug use in horses. We are using best practices to make the tracks themselves safer for the animal. Even though the new federal racing regulators have made a vital difference in this progress they have not done it alone. Horse people across the country have buckled down to decrease the number of breakdowns during races or training sessions. We get it. And we are fixing it.”

Even anti-HISA horse people should be able to put aside their opposition and acknowledge the safety benefits federal regulation has brought to the industry. Entities like the HBPA and the USTA, which have done their members a disservice by failing to provide them with critical context and perspective on the new federal racing law, should realize that their silence in happy moments – racing fatalities are at an all-time low! – represents a lost opportunity to convince people beyond horse racing that the industry is heading in the right direction. The value of these lost opportunities, in a sport worried about its existential survival, is incalculable.

An attack on another horse safety law

Here’s another lawsuit brought by an attorney affiliated with a conservative advocacy group that seeks to undermine the ability of federal regulators to protect horses. In this case, Courthouse News tells us, a horse owner sued the U.S. Department of Agriculture over federal regulators’ attempt to enforce provisions of the Horse Protection Act. The feds investigated Joe Manis, a longtime horse owner in North Carolina, for allegedly bringing a sored Tennessee Walking Horse to a show in Virginia. That’s not allowed. Instead of going through the administrative process, Manis sued, claiming he has a right to a trial by jury under the 7th Amendment.

Last week, Manis’ case came before the 4th U.S. Circuit Court of Appeals, the federal appeals court that handles cases from North Carolina. Here’s how Sydney Haulenbeek wrote it up for Courthouse News: “In the underlying investigation, the USDA’s Animal and Plant Health Inspection Service claims Manis brought a sored horse — one that has been burned or otherwise injured to cause the exaggerated gait coveted in well-bred and trained Tennessee Walking Horses — to a horse show. Under the Horse Protection Act, owners are not banned from soring their horses, but they are not allowed to exhibit them or use them in shows.”

The folks at the Pacific Legal Foundation, a conservative advocacy group, say Manis is the victim of an “unlawful in-house tribunal” and that framing tracks with what the anti-HISA plaintiffs have been claiming in their own lawsuits challenging the new federal racing integrity law. You could call every administrative hearing an “in-house tribunal” to make it sound more sinister. And horse racing in the U.S. was governed for years by state “in-house tribunals,” which would reappear if the U.S. Supreme Court strikes down the Horseracing Integrity and Safety Act. I’ll watch the Manis case and let you know when the 4th Circuit issues its ruling.

We’ll know one way or another by the end of June

The Federalist Society, the papa bear of the conservative legal movement, has a note at the end of its online columns that reads the Society “takes no positions on particular legal and public policy matters.” That’s rich. It means something that the Society posted an online column last Friday by Frank Garrison arguing that the U.S. Supreme Court should accept for review the HISA cases pending before it and then strike down the new federal racing integrity and safety law. It’s no surprise that the Society is promoting such views. The anti-HISA litigation is rife with conservative advocacy groups using horsemen as vehicles to achieve ideological aims.

Of Congress’ delegation of authority to the Horseracing Integrity and Safety Authority, Garrison writes: “The Constitution’s separation of powers is designed to ensure we do not reach this point – it embodies a prophylactic delineation of federal power that presupposes exercise by accountable government actors to prevent due process problems.” Lots of fancy words to say, again, that the powerful conservative legal movement is trying to neuter federal agencies (like the FTC, which governs HISA) any way it can. Don’t think for a second that there wouldn’t be anti-HISA litigation even if there were no private HISA Authority.

The Federalist Society has plenty of support among the justices in Washington, D.C. I think it’s likely that the Supreme Court’s three most radical justices, Clarence Thomas, Neil Gorsuch and Samuel Alito, will vote to strike down HISA. I think it’s likely that the court’s most progressive justices, Elena Kagan, Sonia Sotomayor, and Ketanji Brown Jackson, will vote to uphold HISA. That leaves the three other justices, including two Trump justices, to decide the outcome of the HISA litigation. I think it’s still more likely than not that two of the three vote to affirm the new federal racing law. But what do I know? These are tough times for old legal analysts.

NOTES

A fond farewell to Freehold. Regular readers of Keeping Pace know that I am a fan of Fred Hudson, the animal rights activist and Standardbred racing veteran. Hudson spent a great deal of time a few weeks ago putting together a video montage honoring Freehold Raceway, the iconic harness track in the middle of New Jersey that closes later this month. Here is the video. Whether you are in the Standardbred game or not it’s worth watching. And it’s a shame that other harness racing media outlets didn’t share Hudson’s link with their readers. And, for reasons I wrote about a few months ago, it’s a shame that the Age of Freehold didn’t last longer.

Truth-telling about marketing harness racing. My friends at the Daily Racing Form recently published an interesting interview with Greg Luther, a prominent owner. My favorite part was Luther’s response to the question: What would you change in Standardbred racing if you could? His response was an instant classic: “There are so many things I would change. The marketing of the business. They don’t understand what that means. I’m a marketing guy myself. I could get 800 people to the track on a Wednesday but I guarantee they’re not coming back. So until they understand the marketing side of the business is not giving away TVs or a $20,000 Pick 5. Until they understand the industry is not going to make it and it is in a bad position.”

More from Luther: “But, to get someone who understands that marketing, it is very expensive. They don’t understand the social side or the overall marketing of the business. That is what is really crushing us right now. It is not that the internet is here and that there are so many other options available. The Cincinnati Bengals get 30,000 people to watch them and there is no gambling; and they pay $100 a person to get in. It has nothing to do with other distractions, it is just that it isn’t promoted or presented the right way.” Preach, Greg Luther, preach! And blame horsemen representatives for failing to see the wisdom in aggressively marketing the product.

I am sorry I didn’t make it to the Global Symposium on Racing in Tucson last week. I have never been and need to go. I enjoyed the coverage of it. My boss, Ray Paulick, wrote a good piece about it. But my favorite quote came from a Daily Racing Form article on the gathering. “We’re not asking for snitches, we’re not asking for tips, we’re not asking for revenge,” said Kate Mittelstadt, the Horseracing Integrity & Welfare Unit’s chief of operations. “We’re asking for information to inform this program, to make it more effective for this industry.” If HISA falls, it won’t be because federal regulators didn’t beg for industry buy-in.

An ugly side to the horse business. Please take the time to read the first part of Natalie Voss’ excellent investigative series on bail pens published last week at Paulick Report. It’s a long read but Voss gets to the heart of the matter: there are plenty of people who make a living, or try to, frightening horse lovers into spending money to “rescue” horses. The shadiness of some of these ventures is self-evident. Both the Standardbred industry and the Thoroughbred industry need to spend more time and money on “aftercare” that limits the number of poor racehorses who end up in these pens, their images used on social media to drum up rescuers.

Accounting And Budgets. At Horse Racing Nation, Ron Flatter intended to criticize federal racing regulators for their salaries and HISA’s budget. “What we finally learned this week was that for all its protestations that money is tight, the non-profit HISA turned a $4.6 million profit last year.” That’s simply not correct. “Every dollar we save goes back into reducing assessments for the following year on a pro rata basis,” HISA chief Lisa Lazarus told me on Friday. “There is a difference between our cash flow and budget.” What Flatter sees as “profit” is actually the cost savings HISA has accomplished during its fiscal year.

HISA’s chief financial officer, Jim Gates, told me over the weekend: “HISA’s 2022 and 2023 IRS Form 990s show that, for these two years combined, HISA had $3.995 million more in revenues than expenses. As a result of this surplus, HISA returned a total of $4.153 million to the industry through annual True-Ups.” HISA faces enough criticism for the merits of its work, and some of it is warranted, but there is nothing in HISA’s brief life that suggests that it is mismanaging money or spending it “lavishly.” A reminder: HISA has come in under budget since its inception – and the FTC has approved each of its budgets.

Feedback from Keeping Pace readers to last week’s column about corporate greed and the new federal racing regulations. “Another excellent article regarding the latest HISA challenges. I always appreciate not only your opinions but the actual excerpts you are referring to so we can read them ourselves,” wrote a regular reader who asked not to be named. “Unfortunately, I am willing to bet that most horsepeople simply will ignore the reasoning and main points. Self interest – on every level – has and is governing our business. The fact that the two major players filed suit rather than simply settle things demonstrates this once again.”