“We cannot have a situation where an enforcement action is overturned because the authority of the enforcing entity to act is in question,” said Ed Martin, ARCI President.  “The only way to avoid that is to delay approval of HISA rules leaving existing state rules and enforcement in place for the time being.”

He added, “The choice for the FTC is clear, state rules are better than no rules during this time of legal uncertainty.” State anti-doping rules have consistently been upheld when challenged in court and a successful appeal of a state enforcement action is extremely rare.  

Should the FTC approve the HISA rules and penalties were imposed for a violation of those rules, the action could be appealed and potentially overturned and wiped away due to the finding in the Fifth Circuit that HISA is unconstitutional.     

Likewise, if a racing commission enforces the existing State anti-doping rule and penalties imposed for a violation are appealed using the argument that the federal rule preempts state action the possibility that it can be overturned also exists.

The only way to avoid this Catch-22 is to leave state rules and enforcement in place by delaying final action on the HISA ADMC rules.   “To approve them now with this legal uncertainty is an invitation to cheaters that you might get a free ride during the first ten days in January, if not longer,” he said.

The ARCI has not taken a position on the pending litigation, although some member States have and are litigating the constitutionality of the Act.   In August, Martin called for HISA to sit down with all litigants and negotiate a way out.   That did not happen.   

Martin said the failure of HISA to request a delay leaves the state commissions no other option but to do so.   “We believe it irresponsible to not leave a rock solid enforcement program in place until the legal questions are settled.  It’s that simple.”