Judge orders 30-day pause for federal medication rules

A federal judge in Texas ordered the Horseracing Integrity and Safety Authority to put its new medication rules on hold for a month, meaning they will not be in effect for Saturday’s major Kentucky Derby 2023 prep races at Gulfstream Park and Oaklawn. 

Ruling late Friday afternoon in Lubbock, Texas, judge Wes Hendrix agreed with the National Horsemen’s Benevolent and Protective Association that the HISA rules were ratified Monday by the Federal Trade Commission without the required 30 days’ notice.

“The anti-doping rule took effect the same day it was published as final,” Hendrix wrote. “As a result the rule (was) issued in violation of the Administrative Procedure Act, so the plaintiffs – and everyone else – will get their 30 days.”

However, Hendrix did not issue a full preliminary injunction to the NHBPA, the Texas Racing Commission and the other plaintiffs who asked him to grant it.

“In the interest of judicial economy, and because the plaintiffs only seek emergency relief as to the anti-doping rule, the court will limit its analysis to the sole issue at hand, whether the FTC failed to comply with (the) required 30-day waiting period and, if so, whether the plaintiffs are entitled to equitable relief.”

Hendrix said HISA was free to put the new medication rules into effect May 1, four days before the Kentucky Oaks (G1) and five days before the Kentucky Derby.

“The appropriate remedy is to declare the (new medication rules) invalid for a 30-day notice period and valid thereafter absent further order of the court,” Hendrix wrote. “This ruling protects the parties affected by the FTC action taken during the 30-day waiting period without disturbing later action that is not the product of the violation.”

HISA CEO Liza Lazarus accepted that the medication regulations are on hold.

“We’re going to sort of suspend operations for 30 days and get ready to take over again on May 1,” Lazarus said in a Zoom call with reporters Friday night. “We’re going to hand the keys back to the states to essentially run the anti-doping programs during the process.”

The NHBPA believed the sudden implementation of the new medication rules would have put trainers in important stakes races this weekend under regulations they might not have had time to obey, especially if there were differences between the old state rules and the new ones written by HISA.

“Late approval gave horsemen zero lead time before the effective date, such that many substances that were (legal) at the time they were consumed will still be in a horse’s system and appear on tests taken (Saturday), potentially resulting in disqualifications and sanctions without relief from this court,” NHBPA lawyers argued in their court papers.

Because of Hendrix’s ruling Friday, existing state medication rules will apply to the Florida Derby (G1) and Arkansas Derby (G1), both Kentucky Derby qualifiers Saturday, as well as other stakes races this weekend that the NHBPA brought to the attention of Hendrix.

“We are very pleased that the National HBPA has defeated HISA in the courts yet again,” NHBPA CEO Eric Hamelback said in a written statement. “It was reckless and irresponsible of (HISA) and the FTC to rush to implement these brand new rules this weekend. Horsemen need time, and we were glad to stand for them once again.”

Lazarus said she and her team considered and then rejected the idea of going to a higher court to fight Friday’s ruling.

“We discussed appealing or trying to kind of reverse the order,” Lazarus said. “But ultimately we’re here to serve the industry. I think that just creates more chaos. At this point we know it’s 30 days, and so we can plan for that, and then we don’t have this back and forth.”

In documents filed with Hendrix, HISA attorneys argued that “plaintiffs have demonstrated no irreparable harm, and any injunction would greatly injure the public interest by upending a successful regulatory regime.”

“We really do see it as only a bump in the road,” Lazarus said, “because the judge’s order makes it very clear that at the 30-day mark, we’re operational again, and he doesn’t foresee any issues.”

Hendrix is the same judge who ruled in favor of HISA exactly a year ago when he dismissed an NHBPA claim that the new law was unconstitutional. Higher appeals courts have made diametrically opposite rulings on that point, complicating the overarching legal fight over the nine-month-old racing regulator.

“The Fifth Circuit Court of Appeals ruled that HISA was unconstitutional in our lawsuit before,” Hamelback said, “and we expect they will do so again.”