The USTA and Jeff Gural both respond to a case that may impact harness racing’s future.

by Dave Briggs

Andrew Cohen reported this week in his Keeping Pace columnin The Paulick Report that the U.S. Supreme Court has announced it will not hear a case challenging the legality of thoroughbred racing’s controversial Horseracing Integrity and Safety Act (HISA).

Specifically, the justices’ decided not to review a decision by the Sixth U.S. Circuit Court of Appeals that ruled that HISA is a constitutional exercise of Congressional power and authority.

“The justices did not specifically rule in favor of HISA,” Cohen wrote. “But their decision not to hear an appeal in the case styled Oklahoma v. United States is a strong signal that they are comfortable with the lower courts’ decision in favor of the new racing law. It’s also a strong signal that a majority on the court saw nothing meritorious enough in the anti-HISA arguments to justify a substantive review of the case.

“The denial of a writ of certiorari, as it is called, is a major blow to the anti-HISA faction within thoroughbred and standardbred racing. That includes the states of Oklahoma, West Virginia and Louisiana, racing commissions in Oklahoma and West Virginia, and also the United States Trotting Association (USTA).”

Charles Scheeler, the chair of HISA, issued a statement that read:

“We are pleased the Supreme Court has decided to let the Sixth Circuit Court’s ruling affirming HISA’s constitutionality stand. As evidenced by the 38 per cent decline in equine fatalities recorded for the first quarter of this year, HISA’s uniform standards are having a material, positive impact on the health and well-being of horses. It is long past time for opponents of HISA to drop their outstanding lawsuits. In light of this decision, continued litigation only serves to take time and valuable resources away from our core mission of improving the safety and integrity of thoroughbred racing.”

Shortly after the decision, the USTA posted a story on its websitesaying, in part, “The denial effectively ends the USTA’s litigation challenging HISA’s constitutionality but does not conclude the legal fight itself. In November 2022, the Fifth Circuit ruled HISA unconstitutional in a case filed by the National Horsemen’s Benevolent Association and 12 of its affiliates. Parts of the law subsequently were rewritten, and the case is being reheard by the same judicial panel. Oral arguments were made in October.”

In that story, USTA president Russell Williams was quoted as saying, “It’s well known that the Supreme Court only takes about 80 out of 8,000 discretionary cases filed, and we in racing know a longshot when we see one. But HISA threatens to turn the racing industry into a club sport, so we are extremely disappointed. Given that the plaintiffs in our case include several states, a Cherokee Nation entity, and several tracks and breeders along with US Trotting, our disappointment is felt at the highest levels.

“If the Fifth Circuit strikes HISA down again, the Supreme Court likely will hear the claim that the Constitution forbids delegating governmental authority to a private entity. We shall remain vigilant to make sure that the HISA Authority does not arbitrarily prefer optics to science.”

On Wednesday, Meadowlands Racetrack owner Jeff Gural — who is advocating for standardbred racing to join HISA — sent HRU a letter, unprompted. It reads as follows:

“I assumed the Supreme Court would not hear the appeal of the legality of HISA since they only take three-tenths of 1% of all of the appeals that come their way. What shocks me is that the USTA seems to want to continue spending members money on what is essentially a hopeless case. I would hope the members tell their representatives that it is time to try to make peace and work with the people at HISA to come up with rules and regs that we can all live with.

“With the exception of The Meadowlands, our industry is essentially totally dependent on revenue from slots, and we need to be careful that we don’t send the wrong message to politicians who can pull the plug at any time.

“The majority of thoroughbred organizations are going out of their way to let their customers know that HISA is working, fatality rates are down and they are showing that they care about the health of their horses. We are doing exactly the opposite.

“Anyone who thinks that the USTA will be able to get new legislation enacted in Congress is delusional. USTA members should start by demanding to know how much the USTA has spent so far in this fruitless effort to have the law overturned. I have to believe our dues could be better used to get on TV so that I don’t have to pay NYRA Bets to televise our races.”