Amicus Curiae Brief — Horseracing Integrity and Safety Authority, Incorporated, et al., Applicants v. National Horsemen's Benevolent and Protective Association, et al.

No. 24A287

In the

Supreme Court of the United States

—————

HORSERACING INTEGRITY AND SAFETY AUTHORITY, INC., ET AL.,

Applicants,

v.

NATIONAL HORSEMEN’S BENEVOLENT AND

PROTECTIVE ASSOCIATION, ET AL.,

Respondents.

—————

On Application for Stay of the Mandate of the

United States Court of Appeals for the Fifth Circuit

—————

BRIEF OF THOROUGHBRED INDUSTRY PARTICIPANTS

AS AMICI CURIAE IN SUPPORT OF APPLICANTS

—————

GREGORY G. GARRE

Counsel of Record

BLAKE E. STAFFORD

LATHAM & WATKINS LLP

555 Eleventh Street, NW

Suite 1000

Washington, DC 20004

(202) 637-2207

gregory.garre@lw.com

Counsel for Amici Curiae

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .......................................................................................... ii

INTEREST OF AMICI CURIAE ................................................................................... 1

INTRODUCTION AND SUMMARY OF ARGUMENT ............................................... 1

ARGUMENT .................................................................................................................. 3

A.

HISA Substantially Improves The Regulatory Landscape For

Thoroughbred Horseracing ...................................................................... 3

B.

The Fifth Circuit’s Facial Invalidation Of HISA’s Enforcement

Provisions Threatens Substantial Harm To The Thoroughbred

Industry .................................................................................................... 9

CONCLUSION............................................................................................................. 14

APPENDIX: List of Amici Curiae ............................................................................... 15

TABLE OF AUTHORITIES

Page(s)

Barry v. Barchi,

443 U.S. 55 (1979) .................................................................................................... 7

Bowen v. Kendrick,

483 U.S. 1304 (1987) .............................................................................................. 13

Farina v. Ohio State Racing Commission,

145 N.E.3d 1108 (Ohio Ct. App. 2019)..................................................................... 5

FCC v. Fox Television Stations, Inc.,

567 U.S. 239 (2012) .................................................................................................. 7

Moody v. NetChoice, LLC,

144 S. Ct. 2383 (2024) ............................................................................................ 10

Oklahoma v. United States,

62 F.4th 221 (6th Cir. 2023), cert. denied, 144 S. Ct. 2679 (2024) ................. 3, 4, 9

Walmsley v. FTC,

— F.4th —, 2024 WL 4248221 (8th Cir. Sept. 20, 2024) .................................... 3, 9

STATUTES AND REGULATIONS

15 U.S.C. §§ 3051-3060 .................................................................................................. 1

15 U.S.C. § 3051(4)-(8) ................................................................................................... 1

15 U.S.C. § 3052 ............................................................................................................. 7

15 U.S.C. § 3053 ............................................................................................................. 7

15 U.S.C. § 3053(b) ........................................................................................................ 7

15 U.S.C. § 3053(e)......................................................................................................... 8

15 U.S.C. § 3054(b) ...................................................................................................... 11

15 U.S.C. § 3054(e)(2)(A) ............................................................................................. 11

15 U.S.C. § 3054(k) ...................................................................................................... 11

15 U.S.C. § 3055(c)(1) .................................................................................................... 7

15 U.S.C. § 3056(b)(2) .................................................................................................... 7

ii

Page(s)

15 U.S.C. § 3056(b)(4) .................................................................................................... 7

15 U.S.C. § 3057(b)(1) .................................................................................................... 7

15 U.S.C. § 3057(c)(1)(B) ............................................................................................... 7

15 U.S.C. § 3057(c)(2) .................................................................................................... 8

15 U.S.C. § 3057(c)(3) .................................................................................................... 8

15 U.S.C. § 3057(d)(1) .................................................................................................... 7

15 U.S.C. § 3058 ......................................................................................................... 7, 8

16 C.F.R. § 1.142(f) ........................................................................................................ 7

OTHER AUTHORITIES

166 Cong. Rec. H4981 (daily ed. Sept. 29, 2020) .......................................................... 6

166 Cong. Rec. H4982 (daily ed. Sept. 29, 2020) .......................................................... 4

166 Cong. Rec. S5514 (daily ed. Sept. 9, 2020) ............................................................. 6

88 Fed. Reg. 5070 (Jan. 26, 2023) ............................................................................... 12

88 Fed. Reg. 27,894 (May 3, 2023) .......................................................................... 8, 13

C.L. Brown, Horse Racing Needs Unity, but Road to Getting There May

Be Long as Battles Continue, Louisville Courier Journal (July 9,

2024), https://perma.cc/KR9G-9A6E ........................................................................ 9

Chuck Culpepper, Medina Spirit, the Kentucky Derby Winner, Heads

into the Preakness Under a Cloud After Drug Test, Wash. Post (May

10, 2021), https://wapo.st/3sfSAv6 ........................................................................... 6

Joe Drape, Justify Failed a Drug Test Before Winning the Triple

Crown, N.Y. Times (Sept. 11, 2019), https://nyti.ms/3AE9S8l ............................... 6

Joe Drape, Santa Anita Park’s Death Toll Reaches 30 Racehorses, N.Y.

Times (June 22, 2019), https://nyti.ms/3saVJfZ...................................................... 6

FTC, Order Approving the Anti-Doping and Medication Control Rule

Proposed by the Horseracing Integrity and Safety Authority (Mar.

27, 2023), https://perma.cc/2SJ3-MBA9 .................................................................. 8

iii

Page(s)

FTC, Order Ratifying Previous Commission Orders as to Horseracing

Integrity and Safety Authority’s Rules (Jan. 3, 2023),

https://perma.cc/6NKY-DRUV ................................................................................. 8

Gus Garcia-Roberts, Officials Worked Secretly to Clear Bob Baffert’s

Justify Amid 2018 Triple Crown Run, Records Show, Wash. Post

(June 29, 2021), https://wapo.st/3fY0gh0 ................................................................ 5

H.R. 2651, Horseracing Integrity Act of 2017: Hearing Before the

Subcomm. on Digital Com. & Consumer Prot. of the H. Comm. on

Energy & Com., 115th Cong. (2018), https://bit.ly/3iH8oE4 ................................... 4

H.R. Rep. No. 116-554 (2020) ........................................................................................ 4

Alicia Hughes, HISA Claiming Rules Bring Horses Consistent

Protection, BloodHorse (Mar. 11, 2024),

https://perma.cc/MA3Y-QAUV ................................................................................. 5

Jockey Club, Vision 2025: To Prosper, Horse Racing Needs

Comprehensive Reform (2019), https://bit.ly/2Uf8FF3............................................ 4

Legislation to Promote the Health and Safety of Racehorses: Hearing

Before the Subcomm. on Consumer Prot. & Com. of the H. Comm. on

Energy & Com., 116th Cong. (2020), https://bit.ly/3s3g4HY .............................. 5, 6

Nat’l Thoroughbred Racing Ass’n, Thoroughbred Industry Reiterates

Support of HISA, Past the Wire (July 13, 2023),

https://perma.cc/5VLK-4F5G ................................................................................... 8

Press Release, Horseracing Integrity & Safety Auth., HISA Makes

Significant Strides in First Year of Implementation (July 11, 2023),

https://bit.ly/3Qwv5wa ............................................................................................. 9

Press Release, U.S. Attorney’s Office for the Southern District of New

York, Manhattan U.S. Attorney Charges 27 Defendants in

Racehorse Doping Rings (Mar. 9, 2020), https://bit.ly/3jKZ6q4 ............................. 6

Dan Ross, Lucinda Finley Q&A on the Fifth Circuit Bombshell,

Thoroughbred Daily News (July 7, 2024),

https://perma.cc/J2WT-KFG6 ................................................................................ 12

Natalie Voss, Spike in Corticosteroid Tests Highlights Growing Pains

in New Mexico, Paulick Report (Feb. 21, 2019),

https://bit.ly/3zcKt5w ............................................................................................... 5

iv

INTEREST OF AMICI CURIAE1

Amici curiae are 30 owners, breeders, trainers, jockeys, and other participants

in the Thoroughbred horseracing industry. With decades of collective experience

among them, amici have had the privilege of working with—and caring for—some of

the finest Thoroughbreds in the world, often at the pinnacle of the sport. While their

connections to Thoroughbred horseracing are diverse, amici all share an unyielding

commitment to the integrity of the sport and its continued success, including the

health and safety of the horses on which the sport depends. A complete list of amici

can be found in the appendix to this brief.

In this case, the Fifth Circuit held that the enforcement provisions of the

Horseracing Integrity and Safety Act of 2020, 15 U.S.C. §§ 3051-3060 (HISA or Act),

are facially unconstitutional. Because amici have been “engaged in the care, training,

or racing of” “Thoroughbred horse[s],” 15 U.S.C. § 3051(4)-(8), they are governed by

HISA’s regulatory framework and thus have a substantial interest in ensuring that

this framework remains in place pending further review by this Court.

INTRODUCTION AND SUMMARY OF ARGUMENT

Passed with bipartisan support in Congress and signed into law by President

Trump in 2020, HISA reflects a landmark achievement for the sport of Thoroughbred

horseracing, bringing nationwide regulatory reform to a national sport that

desperately needed it. Before HISA, Thoroughbred horseracing was a national sport

No counsel for a party authored this brief in whole or in part; and no party, counsel

for a party, or person or entity other than amici curiae and their counsel made a monetary

contribution intended to fund the preparation or submission of this brief.

1

1

laboring under an unsustainable patchwork of state-by-state regulations governing

medication control and racetrack safety.

This patchwork not only subjected

participants to arcane and often conflicting rules and unpredictable enforcement

regimes of 38 different racing jurisdictions, but it prevented industry-wide responses

to a series of high-profile controversies that threatened to tarnish the sport’s

reputation.

HISA addresses that Balkanized situation by calling for nationally uniform

medication-control and racetrack-safety regulations to be promulgated and enforced

by the Federal Trade Commission (FTC) with the assistance of the Horseracing

Integrity and Safety Authority (Authority). The legislation’s focus on uniformity and

fairness dramatically improves the pre-HISA regulatory disarray while staying

within

constitutional

bounds,

which

is

why

the

Thoroughbred

industry

overwhelmingly supported it, two bipartisan Congresses and two presidential

administrations have embraced it, and two courts of appeals have upheld it against

constitutional attack. And after two years of implementation, this regime is firmly

embedded into the Thoroughbred industry and is already yielding substantial

benefits—racetrack conditions are improving, equine fatality rates are declining, and

wagers from racing fans are increasing. HISA is thus on track to not only preserve

but strengthen Thoroughbred horseracing.

The Fifth Circuit, however, has invalidated this duly enacted legislation by

finding a non-delegation problem in HISA’s enforcement provisions—one of the few

times in history that a court has invalidated federal legislation on non-delegation

2

grounds. As explained by the Authority applicants and the federal government

respondents, the Fifth Circuit’s decision is wrong several times over; directly conflicts

with the Sixth and Eighth Circuits’ decisions in Oklahoma v. United States, 62 F.4th

221 (6th Cir. 2023), cert. denied, 144 S. Ct. 2679 (2024), and Walmsley v. FTC, —

F.4th —, 2024 WL 4248221 (8th Cir. Sept. 20, 2024); and warrants immediate

correction by this Court.

In the meantime, however, it is imperative that this Court stay the Fifth

Circuit’s mandate while this litigation plays out.

The Fifth Circuit’s facial

invalidation of HISA’s enforcement provisions will unravel the entire regulatory

regime, and there is no reason to allow that to happen before this Court has had a

chance to review the Fifth Circuit’s outlier decision. Indeed, without a stay of the

mandate, the Fifth Circuit’s decision would produce nationwide confusion in the

Thoroughbred industry while also creating huge gaps and disparities in the

enforcement of critical health and safety regulations, threatening irreparable harm

to Thoroughbred racehorses and those who ride them.

Given these damaging

consequences, the Court should stay the Fifth Circuit’s mandate and maintain the

status quo during the pendency of these proceedings.

ARGUMENT

A.

HISA Substantially Improves The Regulatory Landscape For

Thoroughbred Horseracing

1.

Thoroughbred horseracing is a national sport, and the “health and

safety [of the] horses and jockeys,” as well as the competitive integrity of the races,

all depend on a functioning regulatory regime governing medication usage and

3

racetrack standards. Oklahoma v. United States, 62 F.4th 221, 226 (6th Cir. 2023),

cert. denied, 144 S. Ct. 2679 (2024). Indeed, given the numerous “risks associated

with unsafe tracks and doping,” such regulations are “imperative.” Id.

Before HISA, these critical aspects of the sport were “regulated independently

by each of the 38 States in which the sport is legal.” H.R. Rep. No. 116-554, at 18-19

(2020). The “38 different state [regulatory] agencies” had “varying levels of funding,

expertise, and experience.” H.R. 2651, Horseracing Integrity Act of 2017: Hearing

Before the Subcomm. on Digital Com. & Consumer Prot. of the H. Comm. on Energy

& Com., 115th Cong. 57 (2018), https://bit.ly/3iH8oE4 (statement of Craig Fravel,

CEO, Breeders’ Cup Ltd.). And each State had its own “unique procedures” for

rulemaking and enforcement, making it “impossible” to keep the “different racing

jurisdictions in sync[].” Jockey Club, Vision 2025: To Prosper, Horse Racing Needs

Comprehensive Reform 2 (2019), https://bit.ly/2Uf8FF3.

As a result, the

Thoroughbred industry labored under a “patchwork of conflicting and inconsistent

State-based rules governing prohibited substances, lab accreditation, testing, and

penalties for violations.” 166 Cong. Rec. H4982 (daily ed. Sept. 29, 2020) (statement

of Rep. Barr).

This patchwork was unsustainable.

Industry participants were forced to

navigate an increasingly opaque and unfair regulatory minefield as their horses

traveled across the country from race to race.

Particularly with respect to the

regulation of medications and other substances, the States simply could not agree on

basic issues regarding which substances to regulate and how to regulate them.

4

Industry participants who “ship[ped] horses across state lines” had to expend

significant resources to avoid “running afoul of another state’s arcane”—and often

unpredictable—“doping requirements.” Legislation to Promote the Health and Safety

of Racehorses: Hearing Before the Subcomm. on Consumer Prot. & Com. of the H.

Comm. on Energy & Com., 116th Cong. 31 (2020) (2020 House Hearing),

https://bit.ly/3s3g4HY (statement of Joe De Francis, Chairman, National Horseracing

Advisory Council of the Humane Society of the United States). And enforcement

efforts were just as unpredictable, with state racing commissions failing to employ

consistent laboratory testing standards2 or misunderstanding (or ignoring) their own

rules.3 Ultimately, “the differences in standards and arbitrariness in enforcement”

thwarted rules designed to protect the health and safety of racehorses.

Alicia

Hughes, HISA Claiming Rules Bring Horses Consistent Protection, BloodHorse (Mar.

11, 2024), https://perma.cc/MA3Y-QAUV.

Although state racing commissions recognized the problems with this chaotic

regulatory environment, they were unable to achieve any sort of uniformity on their

own. The closest they came was the National Uniform Medication Program (NUMP),

an initiative introduced in the early 2010s that sought to standardize four

components of anti-doping and medication-control regulation.

See 2020 House

See, e.g., Natalie Voss, Spike in Corticosteroid Tests Highlights Growing Pains in New

Mexico, Paulick Report (Feb. 21, 2019), https://bit.ly/3zcKt5w.

2

See, e.g., Farina v. Ohio State Racing Comm’n, 145 N.E.3d 1108, 1110-12 (Ohio Ct.

App. 2019); cf. Gus Garcia-Roberts, Officials Worked Secretly to Clear Bob Baffert’s Justify

Amid 2018 Triple Crown Run, Records Show, Wash. Post (June 29, 2021),

https://wapo.st/3fY0gh0.

3

5

Hearing 14-15 (statement of William M. Lear, Jr., Vice Chairman, The Jockey Club).

But even that initiative failed—nearly a decade later, the States’ adoption of these

components was at best “erratic” and “incomplete.” Id. at 15.

The regulatory patchwork also prevented industry-wide responses to a series

of national controversies involving highly publicized horse-doping incidents4 and

unprecedented racetrack injuries and fatalities.5

These and other high-profile

controversies prompted widespread concern about the safety and integrity of

horseracing, with some going as far as to “call[] for this sport to be abolished

altogether.”

166 Cong. Rec. S5514 (daily ed. Sept. 9, 2020) (statement of Sen.

McConnell). Put simply, without uniformity, the sport “face[d] an existential threat.”

2020 House Hearing 16 (statement of William M. Lear, Jr.).

2.

Enter HISA. Enacted in 2020 with bipartisan support in Congress and

“the support of the overwhelming majority of . . . the horseracing industry,” 166 Cong.

Rec. H4981 (daily ed. Sept. 29, 2020) (statement of Rep. Tonko), HISA ushers in a

national regulatory regime that provides much-needed centralization and uniformity

in medication-control and racetrack-safety governance. This regime is overseen by

the FTC, and it leverages the expertise of the Authority—a private, standard-setting

See, e.g., Joe Drape, Justify Failed a Drug Test Before Winning the Triple Crown, N.Y.

Times (Sept. 11, 2019), https://nyti.ms/3AE9S8l; Chuck Culpepper, Medina Spirit, the

Kentucky Derby Winner, Heads into the Preakness Under a Cloud After Drug Test, Wash. Post

(May 10, 2021), https://wapo.st/3sfSAv6; Press Release, U.S. Attorney’s Office for the

Southern District of New York, Manhattan U.S. Attorney Charges 27 Defendants in

Racehorse Doping Rings (Mar. 9, 2020), https://bit.ly/3jKZ6q4.

4

See, e.g., Joe Drape, Santa Anita Park’s Death Toll Reaches 30 Racehorses, N.Y. Times

(June 22, 2019), https://nyti.ms/3saVJfZ.

5

6

body composed of both independent individuals and industry experts that represent

various equine constituencies. See 15 U.S.C. §§ 3052-3053.

HISA’s focus on uniformity is relentless. HISA calls for “uniform standards”

regarding medications, id. § 3055(c)(1); uniform standards regarding testing

protocols and laboratory accreditation, id. § 3057(b)(1); and a “uniform set” of

standards regarding “training and racing safety” and “track safety,” id. § 3056(b)(2),

(b)(4). These standards are promulgated through a uniform rulemaking process. Id.

§ 3053(b). And HISA requires the creation of a uniform “disciplinary process” for

enforcing “safety, performance, and anti-doping and medication control rule[s],” id.

§ 3057(c)(1)(B); uniform rules within the enforcement proceedings, id. § 3057(c)(2);

“uniform rules” regarding “sanctions,” id. § 3057(d)(1); and a uniform review process,

id. § 3058. This uniformity eliminates much of the unfairness and unpredictability

inherent in the state-by-state regulatory approach to horseracing.

HISA also improves the due process protections afforded to regulated parties.

Those improvements begin with the uniformity described above, which promotes

nationwide clarity and consistency—two fundamental pillars of due process. See FCC

v. Fox Television Stations, Inc., 567 U.S. 239, 253 (2012). And HISA installs several

“procedural mechanism[s]” that safeguard the due process rights of regulated parties.

Barry v. Barchi, 443 U.S. 55, 68 (1979). HISA provides interested parties multiple

opportunities to comment on proposed rules. See 15 U.S.C. § 3053(b); 16 C.F.R.

§ 1.142(f). With respect to enforcement, HISA requires “rules and process[es]” that

guarantee “adequate due process, including impartial hearing officers or tribunals

7

commensurate with the seriousness of the alleged safety, performance, or anti-doping

and medication control rule violation and the possible civil sanctions for such

violation,” 15 U.S.C. § 3057(c)(2)-(3), followed by multiple layers of FTC review, id.

§ 3058. And HISA grants the FTC plenary rulemaking power, confirming that the

FTC exercises oversight and control over all aspects of the program’s rulemaking and

enforcement. Id. § 3053(e).

3.

HISA’s regulatory regime has been in place now for more than two years.

And even in that relatively short amount of time, HISA is already “well on its way to

providing the positive reforms Thoroughbred racing has needed for a long time.” Nat’l

Thoroughbred Racing Ass’n, Thoroughbred Industry Reiterates Support of HISA, Past

the Wire (July 13, 2023), https://perma.cc/5VLK-4F5G.

Over the past two years, the FTC has approved, and the industry has grown

accustomed to, several regulations that together establish a national, uniform

regulatory regime governing racetrack safety and anti-doping and medication

control.6

And the Authority has invested significant resources setting up the

infrastructure necessary for this regime to operate smoothly while also implementing

tools to keep up with developments in the sport, including multiple databases to

capture nationwide health and safety data for horses and jockeys, science-informed

health and safety protocols grounded in national data, and an array of online and onSee, e.g., Horseracing Integrity and Safety Act: Anti-Doping and Medication Control

Rule, 88 Fed. Reg. 27,894 (May 3, 2023); FTC, Order Approving the Anti-Doping and

Medication Control Rule Proposed by the Horseracing Integrity and Safety Authority (Mar.

27, 2023), https://perma.cc/2SJ3-MBA9; FTC, Order Ratifying Previous Commission Orders

as to Horseracing Integrity and Safety Authority’s Rules (Jan. 3, 2023),

https://perma.cc/6NKY-DRUV.

6

8

the-track initiatives designed to facilitate an open dialogue with industry

participants. See, e.g., Press Release, Horseracing Integrity & Safety Auth., HISA

Makes Significant Strides in First Year of Implementation (July 11, 2023),

https://bit.ly/3Qwv5wa.

As a testament to these efforts, HISA’s implementation over the past two-plus

years has been successful. As the Authority details in its application, racing-related

equine fatality rates have dropped by nearly 50 percent as compared to pre-HISA

figures, industry participants have largely embraced HISA’s standardized rules and

predictable enforcement framework, and wagering fans have greater confidence in

the integrity of the races. Appl. 23-26. In short, the Thoroughbred industry has

adjusted to this regime, and “[t]here’s no denying HISA’s impact in making the

industry safer.” C.L. Brown, Horse Racing Needs Unity, but Road to Getting There

May Be Long as Battles Continue, Louisville Courier Journal (July 9, 2024),

https://perma.cc/KR9G-9A6E.

B.

The Fifth Circuit’s Facial Invalidation Of HISA’s Enforcement

Provisions Threatens Substantial Harm To The Thoroughbred

Industry

Departing from the Sixth and Eighth Circuits, the Fifth Circuit’s decision in

this case invalidated HISA’s entire enforcement framework as unconstitutional.

Appl. App. 15a-29a; compare Oklahoma, 62 F.4th at 231-33 (rejecting identical

challenge); Walmsley v. FTC, — F.4th —, 2024 WL 4248221, at *3-4 (8th Cir. Sept.

20, 2024) (same). If allowed to stand, the Fifth Circuit’s decision will deal not just a

major blow to an Act of Congress, but a major blow to the horseracing industry,

9

upending years of successful implementation efforts and returning the industry to

regulatory disarray. But regardless of how this Court ultimately decides this case, it

is crucial that the Court stay the Fifth Circuit’s mandate now to avoid a massive—

and potentially unnecessary—regulatory upheaval before the Court has had a chance

to weigh in.

As an initial matter, the blast radius of the Fifth Circuit’s decision is as broad

as possible—it will destabilize Thoroughbred horseracing nationwide. Indeed, by

“declar[ing] that HISA’s enforcement provisions are facially unconstitutional,” Appl.

App. 3a (capitalization altered), the effect of the Fifth Circuit’s decision is “akin to a

universal injunction,” Moody v. NetChoice, LLC, 144 S. Ct. 2383, 2416 (2024)

(Thomas, J., concurring in the judgment), “meaning that [the statutory provisions]

cannot be applied to anyone at any time under any circumstances,” id. at 2428 (Alito,

J., concurring in the judgment). Thus, without a stay, the Fifth Circuit’s decision

threatens to override the decisions by the Sixth and Eighth Circuits and render

HISA’s enforcement provisions inoperative at races across the country during this

Court’s review.7

The disruptive consequences of that result are obvious: HISA-regulated races

nationwide would be governed by HISA rules without any concrete mechanism for

enforcing them. To be clear, even under the Fifth Circuit’s decision, participants in

Attempts to cabin the Fifth Circuit’s decision so that it applies only to respondents’

members would create more problems. Respondents purportedly have thousands of members

that span the country, see Appl. App. 15a, and drawing that kind of line would introduce the

untenable prospect that the rules may be enforced differently for participants—even

participants in the same race—depending on whether they have some connection to one of

the respondent associations. See Appl. 28.

7

10

these races are still subject to HISA rules: The Fifth Circuit held that HISA’s

rulemaking provisions are constitutional, Appl. App. 8a-12a, and HISA-promulgated

rules preempt state rules governing racetrack safety and medication control, see 15

U.S.C. § 3054(b), (k). But the Fifth Circuit’s decision leaves the enforcement of those

rules up in the air. The court declared that the Authority cannot exercise its statutory

enforcement responsibilities as a constitutional matter, Appl. App. 18a-22a, and

interpreted HISA’s “statutory division of labor” in a way that seemingly forecloses

the FTC from taking on those responsibilities itself, id. at 22a-25a.

The only other entities that could conceivably exercise enforcement authority

under HISA are “State racing commissions” that have voluntarily agreed to provide

“services consistent with the enforcement” of HISA rules. 15 U.S.C. § 3054(e)(2)(A).

Even assuming these statutory provisions survive the Fifth Circuit’s decision, but see

Appl. App. 17a-18a n.11, leaving the enforcement of federal rules solely in the hands

of state racing commissions is not a viable alternative. Congress passed HISA in part

because state racing commissions could not fairly and uniformly enforce horseracing

regulations on their own. See supra at 4-6. There is little reason to believe that state

racing commissions will suddenly be able (let alone willing) to do so now. And as the

Authority applicants have explained, several state racing commissions have

restructured their operations and resources in the wake of HISA’s implementation in

a way that assumes federal enforcement of HISA rules. Appl. 27. Saddling state

racing commissions with enforcement responsibilities is certainly not an immediately

feasible interim solution. Ultimately, without a stay, wiping out HISA’s enforcement

11

provisions threatens to create a regulatory “Wild West” where, in practice, the

governing rules are not enforced at all. Dan Ross, Lucinda Finley Q&A on the Fifth

Circuit Bombshell, Thoroughbred Daily News (July 7, 2024), https://perma.cc/J2WTKFG6.

The absence of a functioning enforcement regime would be intolerable for any

sport, and Thoroughbred horseracing is no exception. Bad actors may try to exploit

the regulatory vacuum as an opportunity to cheat, or cut corners when it comes to

safety, running on the harmful—and potentially deadly—idea that “nobody can

enforce the rules, so go dope your horses to your heart’s content.” Id. And regardless

of the extent to which would-be cheaters are actually able to evade the rules, the risk

of cheating and non-enforcement would damage the integrity of the competition for

everyone involved, as it would leave rule-following participants uncertain about

whether (and to what extent) their competitors are following the same rules.

As a practical matter, moreover, scrambling to replace HISA’s enforcement

provisions with some sort of makeshift enforcement regime during the pendency of

these proceedings would create massive confusion for Thoroughbred industry

participants. For example, the anti-doping and medication control rules require

participants to comply with a reticulated series of stringent, and often time-sensitive,

testing and reporting obligations. See generally 88 Fed. Reg. 5070 (Jan. 26, 2023).

All of those obligations, however, assume the validity of the Authority’s statutory

enforcement duties.

Thus, even if it were ultimately possible for state racing

commissions to take over enforcement responsibilities, the rules themselves would

12

have to be substantially revamped, and industry participants would be left trying to

figure out how to comply with their various regulatory obligations in the meantime.

As the FTC has explained, “substantial [regulatory] uncertainty . . . creates an

appreciable risk of errors, confusion, and inconsistent treatment of similarly situated

horses—harms that could frustrate the purposes of the Act.” 88 Fed. Reg. 27,894,

27,894-95 (May 3, 2023). There is absolutely no need for the Fifth Circuit’s outlier

decision to plunge the Thoroughbred industry into regulatory chaos before this Court

has had a full opportunity to review.

*****

HISA reflects a widely supported, bipartisan effort to bring desperately needed

uniformity and transparency to Thoroughbred horseracing in this country, and

Congress has taken great care to ensure that the regulatory scheme is

constitutionally sound. “‘Given the presumption of constitutionality granted to all

Acts of Congress,’” and given the Thoroughbred industry’s reliance on HISA’s

implementation, it is not only “appropriate” but imperative “that the statute remain

in effect pending [this Court’s] review.” Bowen v. Kendrick, 483 U.S. 1304, 1304-05

(1987) (Rehnquist, C.J., in chambers) (citation omitted).

The Court should

accordingly stay the Fifth Circuit’s mandate and preserve the status quo.

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CONCLUSION

The application for a stay of the Fifth Circuit’s mandate should be granted.

Respectfully submitted,

GREGORY G. GARRE

Counsel of Record

BLAKE E. STAFFORD

LATHAM & WATKINS LLP

555 Eleventh Street, NW

Suite 1000

Washington, DC 20004

(202) 637-2207

gregory.garre@lw.com

September 25, 2024

Counsel for Amici Curiae

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APPENDIX:

List of Amici Curiae

Shannon Arvin, President and CEO, Keeneland Association.

Craig Bandoroff, Thoroughbred owner and breeder.

Gary Barber, Thoroughbred owner and breeder.

Reynolds Bell, Jr., Thoroughbred owner and breeder.

Antony Beck, Thoroughbred owner and breeder.

Dr. Jeffrey Berk, Thoroughbred veterinarian; former Chairman of the American

Association of Equine Practitioners.

Breeders’ Cup Ltd., operator of the Breeders’ Cup World Championships series of

Thoroughbred races.

Donna Brothers, NBC Sports commentator; Thoroughbred jockey (retired).

Mark Casse, Thoroughbred trainer; inductee of the U.S. National Museum of

Racing Hall of Fame.

Robert Clay, Thoroughbred owner and breeder.

Everett Dobson, Thoroughbred owner and breeder.

C. Steven Duncker, Thoroughbred owner and breeder.

Terry Finley, Thoroughbred owner and breeder.

Robert Andrew Fleming, President and CEO, Breeders’ Cup Ltd.

James L. Gagliano, President and Chief Operating Officer, The Jockey Club.

Jonathan Green, Thoroughbred owner and breeder.

Arthur Hancock, Thoroughbred owner and breeder.

Seth Walker Hancock, Jr., Thoroughbred owner and breeder.

Fred W. Hertrich III, Thoroughbred owner and breeder.

Ian Highet, Thoroughbred owner and breeder.

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Barry Irwin, Thoroughbred owner and breeder.

Stuart S. Janney III, Chairman, The Jockey Club; Thoroughbred owner and

breeder.

The Jockey Club, leading Thoroughbred breeding and racing organization in the

United States.

Christopher McCarron, Thoroughbred jockey (retired); inductee of the U.S.

National Museum of Racing Hall of Fame.

Daniel Metzger, President, Thoroughbred Owners and Breeders Association.

Chauncey O. Morris, Executive Director, Kentucky Thoroughbred Association.

J. Michael O’Farrell, Jr., Thoroughbred owner and breeder.

Thomas J. Rooney, President and CEO, National Thoroughbred Racing

Association; former member of the U.S. House of Representatives (2009-2019).

George Strawbridge, Thoroughbred owner and breeder.

Vincent Viola, Thoroughbred owner and breeder.

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