Brown: Horse racing's future may come down to court rulings over HISA's constitutionality

It’s an uneasy marriage between the Horseracing Integrity and Safety Act Authority (HISA) and the industry in which it governs. In fact, calling it a marriage isn’t quite the right word at all.

Arrangement maybe?

At this point, the Horsemen’s Benevolent and Protective Association (HBPA) is one of the organizations just tolerating HISA’s existence until it can get — if it can get — the federal government out of horse racing. There are two cases right now the industry is waiting to see how the courts are going to move.

The battle for control over horse racing’s future is taking place in the courts even as the sport itself continues on and is now gearing up for the 150th running of the Kentucky Derby.

Unlike the Run for the Roses, crossing the finish line won’t bring finality in this fight. The U.S. Fifth Circuit Court of Appeals’ decision won’t be the final verdict. Ultimately, the Supreme Court will probably have to weigh in on the case before a real winner is decided.

There is no favorite. Just two sides that have differing philosophies on “what’s best” for the sport. The problem is it took the construction of HISA for the industry to get serious about its future. What's clear is things can't go back to how they were even if HISA is no longer valid.

HISA was created in 2020 to establish a national standard of rules for the horse racing industry. Before it was established, the 38 states that have horse racing were free to have their own set of rules. That was fine until horse deaths began to rise and Congress got involved.

No one in a locally run company likes a new boss who was assigned from corporate. That’s essentially what the federal government and HISA represents here, an outside entity swooping in on a sport they have never been closely involved in running.

So even though that boss might have some innovative ideas and may actually help improve the business, the old management is going to be reluctant to listen or change.

A case challenging the constitutionality of HISA moved from the U.S. Sixth Circuit Court of Appeals, of which Kentucky falls into its jurisdiction, into a hovering pattern to see if the Supreme Court is going to accept it for review. However, the Supreme Court justices may be waiting on a lower-court ruling for a similar case.

Depending on what the Fifth Circuit rules, when they finally decide to rule after hearing arguments back in October, the Supreme Court may or may not take it up for review.

Many would like nothing more than to celebrate the highest court in the land ruling HISA unconstitutional.

Those opposed to it did claim victory, temporarily, back in November 2022; the Fifth Circuit ruled that HISA was an “unconstitutional delegation of governmental power to a private entity.” In December of that year, several amendments of the initial bill were made to appease the court.

When the case was sent back to a Texas federal district court in May last year, the changes led to HISA being ruled constitutional. A similar case that came in front of the Sixth Circuit also gave HISA a victory in March 2023.

So, for the past year, HISA has been allowed to implement changes in horse racing. Critics from the HBPA and its affiliates believe some of those changes are random, especially those related to medication horses receive and when they can receive them.

It’s past the point of being amicable, too.

Louisiana Rep. Clay Higgins is already trying to replace HISA. Higgins introduced a bill called the Racehorse Health and Safety Act (RHSA) in October that would again give states regulatory power and it would establish a national governing body called the Racehorse Health and Safety Organization (RHSO).

Several amicus briefs have already been filed to Supreme Court justices rallying against HISA. Scott Dilworth, who owns a thoroughbred farm in Versailles but resides in Texas, filed one last November. The Standardbred Owners Association of New York is so riled up by HISA it filed one, too — despite the fact that the law doesn’t apply to them because HISA does not govern harness racing.

The haymakers are coming from all directions of those who oppose HISA. Perhaps if they fought this hard for horse racing before it was established, the industry wouldn't be in this predicament.

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

This article originally appeared on Louisville Courier Journal: HISA in battle for control over future of horse racing