HISA draft rules an indicator of how racing constituencies will need to get in line

LEXINGTON, Ky. -- Over the past two and a half years, major racing jurisdictions across the U.S. have individually contemplated changes to their rules that would restrict the use of the whip in races, gathering together supporters and opponents to argue over the endless pros and cons before going through the oftentimes arduous process of crafting and approving new rules. California, Kentucky, New Jersey, and a handful of mid-Atlantic tracks, among others, have all adopted sets of rules that limit the use of the whip in significant ways.

And, for the most part, those whip rules all differ in significant ways.

Enter the Horseracing Integrity and Safety Authority.

On Thursday, HISA, the name given to the national rule-making body established by federal legislation passed late in 2020, released its first set of draft rules to govern how the sport of Thoroughbred racing will be conducted beginning in the summer of next year. The rules contain a section on use of the whip, and it’s pretty much the one adopted by California.

Whether it’s the right rule – and The Jockeys’ Guild has already said it’s not – is almost immaterial to the larger issue at stake.

Most notably, it’s one rule. And if HISA begins its job on schedule on July 1, 2022, it will be in place and enforced in every racing jurisdiction around the United States.

The tranche of new rules released on Thursday abound with examples like the proposed regulation on whip use. Clenbuterol, the bronchial dilator that can be (and has been) used illegally to build muscle mass, has been the target of increasingly tight rules in major racing jurisdictions for 15 years, with those regulations adopted incrementally on a state-by-state basis. The new rules would simply make it a prohibited substance.

Out-of-competition testing, which is expensive, logistically challenging, and, most importantly, taken seriously in some states and non-existent in others, would roll out nationally. Intra-articular injections of corticosteroids, effective anti-inflammatory medications that are among the most commonly administered therapeutic medications in racing, would be prohibited within 14 days of a race, replacing a dizzying patchwork of regulations.

Like the whip rules, all of those issues have been debated at the state racing commission level ad nauseam for decades. In the vast majority of cases – with the glaring exception of a collective of states based in the mid-Atlantic that have successfully passed a raft of identical rules over the past several years – those debates have typically resulted in different rules, even if some of the differences are relatively minor.

If HISA survives legal challenges, those debates will now take place in a single arena. The public has been invited to comment on the first tranche, with a deadline of Dec. 6, when the rules will go back to HISA’s board for potential amendments before being forwarded to the Federal Trade Commission, the federal supervisory agency for HISA. The FTC will go through its own public-comment and approval process.

Public comment will almost certainly be dominated by the constituencies most affected – owners, trainers, and veterinarians. Those constituencies are currently split on their support and opposition to HISA itself. The proposed rules also have the potential to put agnostic individuals in some constituencies on either side of the fence. One set of rules governing out-of-competition testing, particularly, may appear to some owners to be particularly onerous, as owners will soon be required to report the exact whereabouts of all their horses, even those that have been taken out of training.

Regardless of the breadth and passion of the public comment on a particular rule, the board at HISA is not bound to amend it. The HISA board, which contains a majority of members who do not have connections to racing, has no obligation to change a rule just because thousands of commentators are advocating for it. Furthermore, the U.S. Anti-Doping Agency, which is still not under contract to HISA, is playing a dominant role in crafting the new policies, according to officials involved in the process, and USADA has a robust historical record of erring on the side of its own vision of integrity, rather than compromise and convenience.

As a result, it’s likely racing will face a sea change next year in how the sport goes about protecting bettors, owners, trainers, and other racing constituents from the scourge of cheating, which is more and more connected in the public consciousness with animal abuse.

It’s mid-November, and that new era could dawn in less than eight months.

The tight timeline has led one participant in the process, who did not want to be identified discussing potential fallout from the new rules, to express some hesitation in how fast HISA will be asking the industry to change. Trainers, veterinarians, and owners may not be ready on July 1 of next year to digest every single nuance of the new rulebook without adequate education and buy-in, even from the most resolute opponents.

“The timing is a real concern,” the participant said. “People can adapt, I absolutely believe that. But I am also saying we need to be fair and give them the chance to comply. This has the potential to trip up even well-meaning and well-intentioned people. Unless there is a very aggressive educational effort, it seems like we are setting people up to make a mistake.”

If that’s the case, however, at least it will be a mistake in a single rule book, rather than a problem in one and not another. And, going forward, at least there will be only one body responsible for fixing that mistake.