Court ruling imminent on Churchill Lasix ban

LEXINGTON, Ky. – A Franklin County Circuit Court judge said on Wednesday during a teleconference hearing that he expects to issue an order within a week regarding an effort by a Kentucky horsemen’s organization to prohibit Churchill Downs from writing races that ban the raceday administration of the regulated anti-bleeding medication Lasix.

Judge Thomas Wingate told the participants in the teleconference that he will issue an order “within four or five days, maybe sooner than that,” given that Churchill is currently conducting a live race meet that includes juvenile races in which Lasix is banned on raceday. Churchill has already conducted three races with the ban in place.

“We’ll have something for you fairly quickly,” Wingate said on the teleconference.

:: To stay up to date, follow us on: Facebook | Instagram | Twitter

The hearing involved a request for a temporary restraining order sought by the Kentucky Horsemen’s Benevolent and Protective Association, which represents rank-and-file trainers in the state. The 40-minute hearing focused nearly exclusively on whether tracks have the right to enforce medication rules absent explicit rules set by the state’s horse racing commission.

The legal principle at the core of the case could be made moot in a matter of months, as the Kentucky Horse Racing Commission has already given its preliminary approval to a rule banning the raceday administration of Lasix this year to 2-year-olds, with the ban extended to all stakes races in 2021. That rule, however, is still winding its way through the formal rule-making process in the state, and it requires approval by the state legislature before it can officially go into effect.

David Faughn, an attorney for the Kentucky HBPA, argued that the state’s legislature has given the racing commission the sole right to enforce medication rules, and that an effort by tracks to put in place separate rules governing the administration of medication is an illegal “sub-delegation” of that authority.

“The phase-out of Lasix … has been proposed as a racing regulation,” Faughn said. “And that’s how it has to go. [The racing commission] can phase it out. They can. But they can’t tell the tracks that they can phase it out.”

The Kentucky HBPA position is based, in part, on an opinion issued in 2015 by then-Kentucky Attorney General Jack Conway, who, at the request of the Kentucky HBPA, stated that a regulation passed that year by the Kentucky Horse Racing Commission giving the tracks the authority to ban raceday Lasix was an illegal delegation of its authority. After the opinion was issued, the tracks dropped the effort to write Lasix-free races as a condition of entry, but the regulation remained on the books.

Don Kelly, a Louisville lawyer who is representing Churchill Downs in the case, said that the opinion issued by Conway was based on a “flawed premise” that had been magnified by the Kentucky HBPA when it asked for Conway to issue the opinion on that specific legal principle. He also disputed a central contention in the request for the temporary restraining order, that Kentucky horsemen would suffer “irreparable harm” due to the conditions of the races.

“There’s not a single owner or trainer who has joined this lawsuit,” said Kelly, who noted that Churchill and other Kentucky tracks announced their intention to ban Lasix in 2-year-old races in 2019. “There’s not a single horse that has been harmed. The basis of harm is speculative.”

Jennifer Wolsing, the legal counsel for the Kentucky Horse Racing Commission, told Wingate that the commission’s current rule allowing for tracks to implement the ban does not force the tracks to actually write the bans into the conditions of any races.

“The racing commission adopted the rule, not the racetracks,” Wolsing said, adding that “there’s nothing unusual about allowing options in a regulatory scheme.”