Owner Malmstrom on HISA: ” When You Challenge This Entity, They Don’t Like It”; Iowa Lt. Gov. Delivers Conference Keynote

Horse owner Brent Malmstrom told Wednesday’s opening session of the annual National HBPA Conference that he has spent more than $620,000 – “with no end in sight” — on fighting the two-year suspension handed trainer Jonathon Wong after one of Wong’s horses became the first to test positive in a post-race sample for the widely-prescribed diabetes medication Metformin under the HISA era.

And Malmstrom doesn’t even own the horse at the center of the case.

“You can agree with me or not, but I hope we can agree on one fundamental principle: No one should ever be at risk to losing their entire economic viability by no fault of their own,” Malmstrom told the gathering of the National Horsemen’s Benevolent & Protective Association, which represents about 30,000 thoroughbred owners and trainers, at Prairie Meadows. “And that is something that is happening and will continue to happen until change occurs.

“… There is fundamental unfairness where you can blatantly label someone a cheater when they’ve never had any opportunity to defend themselves,” said the West Coast businessman in the tech industry. “Back then you were labeled and branded and suspended as a cheater before you even had the results of the drug analysis… Now I understand the rules have all changed since then. But many of these changes have not helped our situation.”

Appearing via Zoom because of flight cancelations trying to get to Des Moines, Malmstrom was part of the conference’s opening panel titled “Status Report on HISA – Updates on Issues and Litigation.” Participating in person were Center for American Rights President Daniel Suhr, the lead attorney on the court challenge to the Horseracing Integrity & Safety Act legislation brought by the National HBPA and 12 affiliates in the Fifth Circuit, and prominent Indiana equine attorney Pete Sacopulos, a racehorse owner and breeder who represents the North American Association of Racetrack Veterinarians in the litigation. National HBPA General Counsel Peter Ecabert moderated the panel.

Malmstrom shared his experience as he has financed the ongoing effort to exhaust the new administrative procedures under HISA to get Wong’s case into federal court. The trainer’s case, from a race June 1, 2023, at Horseshoe Indianapolis, was the first of what has become a spate of Metformin positives. It also was among the earliest medication/drug violations sanctioned under the new policies put in place by the Horseracing Integrity & Safety Authority (HISA) corporation and its enforcement arm, the Horseracing Integrity & Welfare Unit (HIWU).

“Back in July (2023), my trainer received a notification from a HIWU investigator at 7:40 in the morning, a Saturday morning on the 4th of July weekend, that he received a positive for the drug known as Metformin,” Malmstrom said. “(Wong) had 18 hours to disperse 150 horses, because he was immediately suspended. We talk about the health and wellness of the animal, but under no circumstances was that a brilliant idea to say he’d have 18 hours to disperse 150 horses.

“… I really felt if we went in, we’d explain the facts and our set of circumstances, and there would be an amicable solution and resolution at the end. I underestimated that position; that is not how this process works. What I’ve come to realize, it doesn’t matter what any of these trainers do or don’t do. If they get an adverse analytical finding, the burden is to prove source. Unless you can prove source, nothing else matters. Think about it in a practical situation. You receive a notice roughly 30 days after the fact. So you don’t have the ability to go in and investigate to discover what happened. Our instance was a ship-in stall…. You ship to the racetrack in question, go into the receiving barn, ran the race, won the race, went to the test barn, got back on the van and shipped back to where the horse was stabled… To this day, we do not know where the source of the (medication) contact came from.”

Malmstrom said he hired the best lawyers and experts available for the arbitration hearing. “Unfortunately what I found is when you challenge this entity, they don’t like it,” he said.

“… I absolutely support the regulatory frame work that goes after those who put their own self-interest above those of the other participants. The problem we have with this case, and other cases I’ve been exposed to, (in) the vast majority of these cases, the threshold or concentration levels they’re testing for are well below any pharmacological effect that would affect the outcome of the race… What that means is it’s an environmental contamination situation.”

Malmstrom said they asked HIWU “what they are doing to investigate these (receiving barn) situations, their response was, ‘It’s not our job to investigate’ — it’s our job. But how can I investigate when everything is after the fact?”

He said an administrative law judge with the Federal Trade Commission charged with overseeing HISA ruled that HIWU has no chain of custody “as it relates to our case. So they can’t actually say that the blood and urine drawn actually relates to the animal. Their rules, unfortunately, say they don’t have to actually be able to demonstrate (chain of custody). They have a rule that says they’re supposed to, but if they don’t follow it, that’s OK.”

Malmstrom said his legal team twice requested DNA testing on the samples and was denied.

HISA and HIWU ultimately announced that they are not enforcing sanctions on new cases until more research is done on the effect of Metformin on horses. They said the new policy would not be retroactive, so Wong remains suspended, although he subsequently started racing horses in Louisiana, which under a separate court challenge received a stay to prevent HISA’s rules from being enforced in that state.

“If I knew what I know today back when all of this started, I probably would have just paid Jonathan to sit on the sidelines for the 18 months they originally were offering and I’d have saved hundreds of thousands of dollars,” Malmstrom said.

“… I know others have received a more favorable outcome. I don’t know how our situation is different, other than I continue to be an advocate for all the people who come behind. When you’re the first, I think they want to make an example out of us.”

HBPA attorney Suhr: Fifth Circuit “a great opinion”

Attorney Daniel Suhr updated the audience on the Fifth Circuit Court of Appeals’ finding announced July 5 that while HISA’s rule-making procedures were constitutional, its enforcement of those rules is not. The suit is in a 45-day period while the Federal Trade Commission and the HISA corporation decide if they will appeal.

With the Sixth Circuit upholding HISA’s legality, the split among jurisdictions is likely to land the case before the Supreme Court, Suhr said, adding that the additional case in Louisiana is still awaiting a ruling. There also is an Eighth Circuit case awaiting a decision.

Even if the Fifth Circuit decision didn’t give the horsemen everything they’d hoped for, Suhr called it “a great opinion.”

“Judge Duncan gave us everything we need to go on and move forward in a great position,” he said.

Suhr expressed confidence that, if the case goes to the high court, the majority of justices will rule in favor of the horsemen and strike down HISA.

“My version of the Kentucky Derby is the Supreme Court oral argument,” he said. “I think that’s where we’re going to end up, and I’m really hopeful when we get there. Just do math. I can count to five. Looking at the Supreme Court over the course of the last year for certain, for the last five years, there has been a consistent pattern where six of the justices are deeply skeptical of what I’ll call the modern administrative state…. But I don’t want to give up on getting all nine justices.

“… There are three other justices, though, who come from a different ideological basis. They’re really concerned about the rights of criminal defendants…. So I’m somewhat OK that with the fact that we’re going to have this not about rule making but rule enforcement. Because I think it gives us a better shot at convincing them to come around. I think they’ll be just as offended as Judge Duncan was at the idea that we’re going to have people running around roughshod over people’s rights.”

In introducing the panel, National HBPA CEO Eric Hamelback called it “a new day” in the wake of the Fifth Circuit opinion.

“HISA has become our industry’s new four-letter word,” he said. “But I also want to say that the National HBPA had the same mission longer than HISA. We wanted national uniformity. We strived for national uniformity. We even supported the RMTC (Racetrack Medication & Testing Consortium) in an effort to do it in a scientistic fashion. So the mission has been the same. But when we started down this path after the (HISA) bill was signed into law, I felt I made it very clear publicly that the stance of the National HBPA is, and remains, to do our due diligence to protect horsemen. That’s what we’re doing: We’re pursuing this because there was a concerted effort to review the Act, and we did not feel like it was in the best interest of the horse.

“We want a level-playing field. We want cheaters out of the game. But how are we going to do it in the best way possible to protect horsemen, and is this Act the right thing to do? I think now we can justly say this act as a whole is not right for horsemen and the horse-racing industry and it’s not doing what is necessary to protect the horse.”

But even with the favorable ruling in the Fifth Circuit, Hamelback said he resists viewing the results in terms of winning and losing. That is a position he’s morphed into, he said, after having wins and losses ingrained in his psyche through his lifetime passions of football, polo and horse racing.

“You can’t think of that now, in that fashion,” Hamelback said. “If you take a driver’s test and you fail, it doesn’t mean you got every question wrong. You can get things right. You can have some safety regulations that are good. You can have some medication rules that are good. But if you don’t get it all correct, you fail. That’s what HISA is doing right now for horsemen: they’re failing. Three constitutional opinions have been rendered against the Act… Therefore, it is not as a whole what’s best for horsemen. It’s not about winning, necessarily, or losing. We can win this round in the courts; we have to wait and see what comes up next. But it needs to be a complete Act; it needs to be what’s best industry of horsemen. And it needs to be in the best interest of the horse. And it needs to protect the industry. I don’t think, if you’re true to yourself, anybody — even outside this room — can 100 percent say what’s going on right now is in the best interest of the entire industry.”

Iowa Lt. Gov. Adam Gregg delivers keynote address

Iowa Lieutenant Governor Adam Gregg thanked the National HBPA Conference for coming to the Prairie Meadows racetrack/casino/hotel complex and praised Prairie Meadows and the Iowa horsemen for their important contributions to the state.

In extolling the virtues of the Hawkeye State, he joked, “And, I will say, with apologies to some of your states like Kentucky, Maryland and New York and others, we’re also home to the highest-stakes horse race of all: the world-famous Iowa Caucuses, where we help winnow the field in our Presidential nominating process and help choose the next leader of the Free World.

“So, by the way, don’t be surprised if a rumor starts that one of you are running for President since you spent some time here in Iowa!”

Gregg saluted the creation of jobs, agribusiness and tourism made possible by Iowa’s racehorse industry — and the impact of the National HBPA and its Iowa affiliate, with David McShane the president and Jon Moss the executive director.

“The HBPA stands as a pillar of support for horsemen across the nation, advocating for fair treatment, safety and the integrity of the sport,” Gregg said.

Amplifying horse racing in a new ‘Light’

Annise Montplaisir, co-founder and executive director of Amply Horse Racing, and Price Bell, general manager of Mill Ridge Farm and one of the founders of Light Up Racing, talked about the new grassroots initiatives designed to create a new generation of racing fans and potential work force (Amplify Horse Racing) and to promote horse racing in a positive light while countering misinformation (Light Up Racing).

Light Up Racing, patterned off a similar initiative in Australia, launched shortly before the Kentucky Derby. Already it has responded to more than 3,200 inaccurate social media posts, Bell said. Notably, it quickly launched on social media a video interview with equine surgeon Larry Bramlage about the successful surgery and promising prognosis for Just Steel, who suffered a leg fracture in the Preakness Stakes. The video effectively countered social media posts suggesting that Just Steel was dead or would die shortly, changing the narrative to the care racehorses get and advances in veterinary medicine.

Bell said that racing “must get away from sticking its head in the sand” while hoping potential controversy would go away, and instead should face such situations head on with accurate and timely information.

“We have the opportunity to grow our sport by sharing the incredible experiences with our horses… Transparency fosters trust and credibility. Alone, we can do very little; together we can do so much,” said Price, a sixth generation horsemen who also was a founder of the Horse Country program that makes many Kentucky horse farms available for public tours. “… It’s the power of the horse that brings us together.”

Light Up Racing’s mission is to get more and more racing people involved in setting the narrative, expanding a circle of information that transcends just those in the industry and finds it way into the mainstream public.

“This is our weapon, our secret sauce, our chance to change the game,” Bell said. “The passion for our industry shown every day by the work by those in this room can influence the ‘movable middle’ as we can shift perception, build trust and ultimately move it in our favor and grow the sport for generations to come.”

Montplaisir, who grew up and became a passionate horse-racing fan in North Dakota, laid out Amplify Horse Racing’s efforts in its short existence to become the American racing industry’s youth arm through an array of programs and experiences. She said the non-profit in 2023, its first year with a full-time staff of two, reached more than 17,000 young people with information about the thoroughbred industry.

Already in 2024, Amplify Horse Racing has had in-person activities in seven states, with expectations of reaching more than 30,000 people by year’s end.

Montplaisir said Amplify wants to work with horse groups to bring youths to the track. She cited a recent summer program held at Hawthorne racetrack in Cicero, Illinois, sponsored by the Illinois Thoroughbred Horsemen’s Association. She said of the five high school students who participated in the program “four came away wanting to be equine veterinarians.”

She said Amplify’s next step is employing regional ambassadors to expand the reach nationally.

Both groups have been funded by industry entities such as the Breeders’ Cup, The Jockey Club, Keeneland, Churchill Downs, Godolphin, Fasig-Tipton and Spendthrift Farm. Light Up Racing is housed under Blue Grass Community Foundation.

“Whether it’s for education with Amplify or Light Up in our messaging or aftercare, it’s really important we reinvest in our industry and our industry’s future,” Montplaisir said.

Trainer Ron Moquett, speaking from the audience, said it’s imperative for horsemen to get involved, noting that cell phones provide virtually everyone “a megaphone in your pocket.”

“There’s nothing as important as this,” Moquett said. “Each person is their own megaphone… Every one of us owes it to the horses, to the industry the little bit of energy it takes to say something good about what we do for a living.”

Aftercare, classifying races, Uncaptured Storm also in spotlight

The aftercare panel on Wednesday’s program has become a staple of the HBPA conference, taking on increasing importance as the racing industry finds ways to give its retired racehorses second careers from accomplished show horses to riding horses to what was affectionately called a “pasture potato.”

Anna Ford, who with her mother founded New Vocations Racehorse Adoption in 1992, noted that the term aftercare wasn’t used in the industry when they began. She told the audience how in the last 10 years, the awareness “of the need for aftercare has grown greatly. I think it started primarily when social media came on the scene. Even 10-12 years ago, you’d ask trainers, ‘What do you do with your horses then they retire?’ and most of them really didn’t have an answer. Fast forward to 2024 and ask them, they have an answer 99 percent of the time.”

Ford said last year that New Vocations’ nine facilities took in 618 horses from 70 racetracks and adopted them out to new homes in 38 states. She said the average length of stay to be rehabilitated, if necessary, and retrained is 121 days before being adopted out. The average cost of the stay, including veterinary care is $4,500, with the average adoption fee being $1,400.

Kirsten Green, administrator for the Retired Racehorse Project, explained that organization’s market-based approach to aftercare, culminating the increasingly popular Thoroughbred Makeover event at the Kentucky Horse Park. That’s where horses who had their last race or published work within the prior 18 months are retrained to compete in 10 disciplines for more than $100,000 in prize money.

Green said more than 4,700 horses have been impacted by having the Thoroughbred Makeover from its 2013 launch at Pimlico through 2023. The result has been increased demand for retired racehorses, helping to take some of the costs of retraining those horses away from aftercare facilities.

Veterinarian Stephanie White, president of Hope After Racing Thoroughbreds (HART), spoke of the importance of Iowa’s only accredited aftercare facility. Since HART’s 2011 launch, 152 horses have gone through the program, with 127 adopted out, she said. The horses all have a connection to Prairie Meadows.

“For our area, I’m quite proud of that number,” White said. “The first five years, we averaged about five horses a year. Since 2018, we’ve average 19.8 horses.”

But like all aftercare facilities, funding remains challenging, along with the need for volunteers, she said.

The final panel of the day featured a detailed explanation of how races are assigned, or stripped of, graded status. The panel included Andy Schweigardt, senior director of industry relations for the Thoroughbred Owners and Breeders Association (TOBA); David O’Farrell, general manager of Ocala Stud and TOBA chairman; and longtime racing official Rick Hammerle, a consultant for 1/ST Racing and director of racing operations at Kentucky Downs. Pat Cummings, executive director of Mike Repole’s new National Thoroughbred Alliance, moderated the panel.

As part of a conversation on finding other ways to fill races and get larger fields, the panelists broached the exploration of introducing ratings handicap races into American racing. Stressing that it would not replace claiming races, they said ratings handicaps would add a category where the condition of the race is based on performance ratings, not claiming prices. Yet to be determine is what entity and methodology would assign rating classifications to horses.

Also: the National HBPA also honored its 2023 National Claiming Horse of the Year in nine-time winner Uncaptured Storm, who won at least once for each of his owners after changing hands five times last year via the claim box.

“This is a tradition that is a backbone of the industry, and certainly a backbone of our organization,” National HBPA CEO Eric Hamelback said, adding that the candidates for the award “are very successful. But it doesn’t mean that success is defined by purse account. It’s not what they’ve earned as much as what they’ve done.”

Majority owner Rick Burnsworth had planned to attend until a work conflict developed. But he sent a message, read by National HBPA President Dr. Doug Daniels, that said in part: “I was thinking about this award the other night, and it hit me like a ton of bricks. Wow! This is as blue collar as it gets. Who doesn’t want to win the Kentucky Derby etc.? To achieve this award you have to get up and compete every day of the year. No time for a let down, and Storm never had one.”

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