According to the Horseracing Integrity and Safety Authority and materials in a U.S. Supreme Court record, the National Horsemen’s Benevolent and Protective Association is pushing for a court order to exempt its members from HISA racing rules nationwide while non-members would race under HISA rules.

Lisa Lazarus, CEO of HISA, laid out the scenario in a letter to Alan Foreman on Oct. 7. Foreman is chairman and CEO of Thoroughbred Horsemen’s Association. In the letter she charges Eric Hamelback, who leads the National HBPA, with advocating chaos in the Thoroughbred racing industry.

“To put it simply, Mr. Hamelback wants to create a system in which his members (HBPA only) can do whatever they want while THA members and all other horsemen not party to his lawsuit will continue to operate under HISA’s safety and ADMC rules,” Lazarus wrote. “That means your horses will continue to be tested for prohibited substances while other horses competing against them will have no enforceable restrictions on performance-enhancing drugs and/or medications.”

As reported in numerous stories published by BloodHorse, the dispute stems from the HBPA’s numerous legal challenges to the constitutionality of HISA. Three federal appellate courts have reviewed the cases. All three agree that HISA’s rule-making authority, overseen by the Federal Trade Commission, is constitutional. The rub lies in a split over HISA’s enforcement powers, with the Sixth Circuit and Eighth Circuit Courts of Appeals issuing rulings favoring HISA and the Fifth Circuit Court of Appeals finding HISA’s enforcement powers unconstitutional. The National HBPA and numerous state affiliates brought that challenge.

After the Fifth Circuit appeals court ruled, it refused to postpone issuing an order—called a mandate—that would send the case back to a federal district court in Texas. That court then would be asked by the HBPA to issue an order declaring all HBPA members exempt from HISA rules.

Foreman said he has not read any of the specific court filings related to the proposed HBPA member exemption but said he is aware of the exemption being sought.

“Many members of the THA are also members of the HBPA, so it’s a blur,” he said about the impact of the HBPA exemption if it was allowed. “It would create a very chaotic situation and essentially cripple the enforcement of HISA until the Supreme Court rules.”

At the time of this story’s publication, an administrative stay of the mandate sought by the HBPA is in place. The stay, issued by Supreme Court Justice Samuel Alito on Sept. 23, was not issued on the merits of the matter because the issue was not fully briefed. The briefing process wrapped up Oct. 2.

Both sides agree the Supreme Court should review the Fifth Circuit decision to break the split of authority among the appellate courts. Foreman said the case is considered ripe to be considered by the highest court, which started its new term Oct. 7. The term runs through mid-June.

“The best outcome now is for enforcement to be stayed, as it has been, in Texas and Louisiana—the two states covered by the Fifth Circuit—and let the case go forward and the Supreme Court decide it,” Foreman said. “There certainly is the opportunity for the court to take the case in this term, to have it briefed, have it argued, and for a decision to be made by next June.”

Lazarus wrote in her letter that HISA offered to allow the ruling to take effect in the Fifth Circuit in exchange for leaving the status quo elsewhere, meaning the rest of the industry currently operating under HISA rules would continue to do so, until the Supreme Court issues a final decision.

“Rather than accept our commonsense proposal, Mr. Hamelback is planning to ask the federal district court in the Fifth Circuit to unleash total disorder by releasing every individual HBPA member nationwide—not just in Louisiana and Texas—from HISA’s enforcement authority,” Lazarus said.

In the absence of a void of enforcement rules applying to HBPA-connected horses, Lazarus wrote, “Mr. Hamelback has argued we can easily revert to the outdated patchwork of state-by-state regulations. This is simply false. As Mr. Hamelback is well aware, multiple states have reduced their own responsibilities over racetrack safety, anti-doping, and medication control, given the industry-wide support and resources provided by HISA since its implementation.”

Bill Walmsley, a retired judge who served the Arkansas Court of Appeals and a member of the National HBPA board of directors, sharply criticized Lazarus’ letter for being “unprofessional” and unnecessary in that it “repeatedly libels” Hamelback.

“The National HBPA’s board of directors—not Eric Hamelback—has determined our legal course. There was no need to personalize a long-standing and good-faith disagreement about what’s best for the industry,” Walmsley said. “Lisa chose to go to the gutter with cheap shots more appropriate to a campaign season attack ad than someone who wants to lead the horse racing industry.

“HBPA won’t take a back seat to anyone in our defense of horsemen, and we won’t back down in the vigorous defense of our members, our industry, and our rights,” he continued. “A nastygram from Lisa is not going to move us one inch off our target: a Supreme Court ruling that strikes down HISA. We’re lucky to have Eric leading our association, and anyone who also wants to be a leader in horse racing should stop tearing people down and start building our industry up. Ms. Lazarus’ comments should be condemned by every horseman or woman.”

Reporting from Bloodstock Editor Eric Mitchell contributed to this story.