Brown: Horse racing needs unity, but road to getting there may be long as battles continue

There’s no winner in the back-and-forth battle over the legitimacy of the Horseracing Integrity and Safety Authority (HISA), regardless of what the courts say.

The longer the horse racing industry, which desperately needs uniformity, remains trapped in a leadership purgatory of sorts, the worse off it will be. 

Three justices in the U.S. Fifth Circuit Court of Appeals guaranteed that void will continue. 

The Fifth Circuit upheld four contested issues in National Horsemen’s Benevolent and Protective Association (HBPA) v. Black. But the court found HISA’s enforcement power violates the private non-delegation doctrine and is therefore unconstitutional. 

Set aside, for now, the curious timing of its decision, as the Fifth Circuit mulled over the case for six months before covertly releasing its ruling on a Friday night of a holiday weekend.

It gave state commissions, including in Texas and Louisiana, under the Fifth Circuit jurisdiction the freedom to continue to govern their race tracks as they see fit.

The HBPA celebration came after HISA had an implied victory of its own last month. The Supreme Court declined to review the U.S. Sixth Circuit Court of Appeals decision in Oklahoma v. United States, which ruled HISA constitutional. (That case was originally filed in Lexington in the U.S. District Court for the Eastern District of Kentucky.)

In not taking the case, it insinuated the Supreme Court agreed with the lower court’s ruling at least enough to decline a substantive review of the case.

There’s still a third case out there in the Eighth Circuit Court of Appeals challenging the validity of HISA. The Eighth Circuit just heard oral arguments last month.

There’s no way to tell if the Eighth Circuit will follow the Supreme Court’s lead or go its own way as the Fifth Circuit did. Regardless of its ruling there will still be division.

Horse racing can’t continue to operate in fragments. But that is the industry's reality for the foreseeable future.

There will be a portion adhering to the rules and policies implemented by HISA, including Churchill Downs and tracks within the Commonwealth of Kentucky. And there will be a portion that defers to its state commissions. (That’s not to mention harness racing, which has never been under the umbrella of HISA.)

With the Fifth and Sixth Circuit Courts offering differing opinions, the Supreme Court will ultimately have to weigh in to decide the fate of the industry. Exactly when that will happen is unclear. Cases can take years to reach the Supreme Court.

It seems like there should be a way all the stakeholders in this could hash things out without needing the court system and the mounting billable hours to go with it.

There’s no denying HISA’s impact in making the industry safer. 

The number of horse deaths have declined since the agency began implementing its safety regulations on July 1, 2022 and, most importantly, its doping policies on May 22, 2023. 

According to HISA’s 2024 first quarter metrics report, there has been a 38% decrease in racing-related fatalities — down to 0.84 per 1,000 starts compared to the first quarter of 2023 when 1.35 fatalities occurred per 1,000 starts. 

There’s also no denying the system has its flaws. 

Back in December, an internal review revealed discrepancies in six Horseracing Integrity and Welfare Unit (HIWU) laboratories. HIWU is the enforcement branch of HISA and the labs were found to have differing limits in blood detection for two drugs: metformin and benzoylecgonine.

Those kind of inconsistencies defy one of the reasons HISA was created in the first place — to bring one standard in drug testing for all participants instead of having state-by-state differences.

The need for unity remains in horse racing, but the road to getting there has too many forks in it.

Reach sports columnist C.L. Brown at clbrown1@gannett.com, follow him on X at @CLBrownHoops and subscribe to his newsletter atprofile.courier-journal.com/newsletters/cl-browns-latest to make sure you never miss one of his columns.