From Horses to Handles: an HBPA Miscellany

“Who are the ‘horsemen’?” – Question posed by an attorney at a party last Saturday, in reference to the Interstate Horseracing Act’s ‘horsemen’s veto’

In a previous post I stated that “I’m not honestly sure what the HBPA did before the Interstate Horseracing Act appeared, but they’re pretty experienced with antitrust litigation by now.” I was being a little disingenuous for effect, but beyond a vague understanding of the origins of the Horsemen’s Benevolent & Protective Association and its purpose of helping fellow horsemen, I really didn’t know much about the Association’s history in its early decades. So I figured I’d look into it.

The Ill-fated ‘Horse Retirement Fund’

Relying heavily on a 2003 article that appeared in the Horsemen’s Journal, I discovered that the HBPA actually grew from a 1940’s movement to establish care for horses, rather than horsemen.

[T]rainer Philip Beiber (he was also the brother of Isidore Beiber, the principal owner for future Hall of Fame trainer Hirsch Jacobs) had convinced New England horsemen and racetrack officials to contribute to a fund that would “retire” Thoroughbred racehorses no longer capable of earning money at the track.

In light of the current movement to provide for Thoroughbreds who have left the track, it is certainly interesting to note that a similar movement existed nearly seventy years ago. What’s even more relevant is that the program was also aimed at eliminating unsoundness from the gene pool.

Beiber felt that some horses in training, either from unsoundness or advancement of age, presented too great a danger to other horses and riders. At first, the Horseman’s Retirement Fund proposed to pay $100 for racehorses that had outlived their potential to earn money at the track. With the formation of the HBPA and the focus turning to the above-mentioned goals, Bieber altered his plans, as well. By the summer of 1941, he proposed to offer $200 to the owner of any mare that was ready for retirement. However, the mare would not be allowed to be bred to any Thoroughbred stallion. Therefore, her lameness or lack of class would not be passed along to future generations.

Unfortunately, Beiber’s plan suffered a “lack of clarity,” namely in how exactly it was going to be implemented. These were the days before TRF, the Excellor Fund, Old Friends, or the many other organizations that provide options for Thoroughbreds who have left the track. As a result, an indeterminate number of the horses ‘retired’ from the track by the proto-HBPA were in fact destroyed, or simply neglected. Harold Simmons, then secretary-treasurer of the HBPA, noted a problem that still faces horse retirement advocates today:

“It is very dangerous to give old horses away . . . Their owners pet them and feed them for a while. But they are like kids with new bicycles. When the paint wears off, they tire of them and neglect them.”

Ultimately, the problems with the horse retirement fund proved too difficult for the HBPA to continue it. “As there seemed to be considerable agitation against Beiber’s organization, it was voted to disband same and donate the funds on hand to the new organization, called the Horseman’s Retirement Fund.” Meanwhile, the HBPA continued to grow, eventually becoming most influential horsemen’s group in the racing industry.

We are the Horsemen

It seems natural now that both the national and the state HBPA’s exercise the bargaining power granted by the Interstate Horseracing Act, including the horsemen’s veto, which allows the horsemen at a various track to decide whether or not the track should permit simulcasting. Initially, however, horsemen weren’t intended to have a seat at the table.

Kentuckian Ned S. Bonnie was general counsel for the HBPA at the time. “A lawyer is like a fireman,” Bonnie said. “We get called when things get really hot. I was actually working in my office in Louisville when (National HBPA President) Jack DeFee called, and he said I’d better get to Washington. He said we needed to get the language written to protect the horsemen’s interests. I was an eleventh hour guest at the party … and I wasn’t welcomed by everyone, either. – From the Horsemen’s Journal 2003 article on the 25th anniversary of the IHA.

Despite the opposition, the statute’s language mandates that a track must get permission from the “horsemen’s group,” before an off-track wager can be accepted by an off-track betting system. While it might have seemed clear at the time that the HBPA was the intended “horsemen’s group,” the language left the issue open for debate, in the courtroom and elsewhere. In 1995, Hialeah Race Track took it to the courtroom.

The IHA defines ‘horsemen’s group’ as “the group which represents the majority of owners and trainers racing …” at the race track. In Hialeah, Inc. v. Florida HBPA, 899 F.Supp. 616 (S.D. Fla. 1995), Plaintiff Hialeah was “reluctant” to admit that FHBPA was the relevant horsemen’s group as defined by the Act. In fact, after FHBPA refused to consent to Hialeah’s complex simulcast contract and, allegedly, refused to send horses to Hialeah to race, Hialeah attempted to obtain the consent of horsemen through a rather unique method. As the court noted:

In an attempt to bypass the FHBPA and obtain the consent to simulcast races for betting purposes from the individual horse owners and trainers themselves, Plaintiff Hialeah has required individual horsemen to give such consent when they rent a stall from Plaintiff Hialeah or when they enter their horse in a race.

In applying for a stall at Plaintiff’s racetrack to stable a horse, a release must be completed by each horse owner or trainer authorizing Plaintiff to “televise, or authorize or license the televising of horse racing … at the Track … without compensation”…. In addition, the entry blank for all horses entered by trainers or owners in a race at the Plaintiff’s facility also authorizes Plaintiff to “televise, or authorize or license the televising of, with or without consideration therefor, certain horse races to be conducted in its racing plant.”

The court didn’t rule on the issue, but it does seem clear that the definition of ‘horsemen’s group’ is open to interpretation. Perhaps as a case in point, we now have associations like the Thoroughbred Horsemen’s Group, a kind of conglomerate of various HBPA’s, or the Kentucky Thoroughbred Association, more of a niche horsemen’s group. Each of these organizations asserts bargaining power, but does each represent a majority of the owners and trainers at a particular track? In a case where each did, which one would the track need to get approval from?

These questions, as well as some interesting antitrust issues, will hopefully be answered in Churchill Downs Incorporated et al v. Thoroughbred Horsemen’s Group, LLC, et al, coming soon to the Federal court in the Western District of Kentucky. Stay tuned.