The Nebraska horse racing season thundered from the starting gate last weekend, but most of the U.S. will not be able to watch or bet on the races.
That's because Fonner Park, which runs the majority of the state's live race dates, has decided not to simulcast its races to other states because it does not want to comply with federal regulations.
Congress passed the Horseracing Integrity and Safety Act in 2020, which created the Horseracing Integrity and Safety Authority, a body under the supervision of the Federal Trade Commission that is charged with drafting and enforcing uniform safety and integrity rules in thoroughbred racing nationwide.
The first rules for horse tracks went into effect in July with the Racetrack Safety Program, which widens veterinary oversight at tracks and imposes surface maintenance and testing requirements, as well as jockey safety regulations. A second set of regulations aimed at doping are set to go into effect in January.
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While the rules technically are voluntary, tracks that don't adopt them are prohibited from providing interstate wagering.
Tom Sage, executive director of the Nebraska Racing and Gaming Commission, said state regulators decided last year not to opt in to adopting the rules statewide, which left the decision up to individual tracks.
Sage said there are many issues with the rules, but the biggest one is cost.
The Horseracing Integrity and Safety Act, he said, is essentially an unfunded federal mandate.
"Basically, they want the state commissions to enforce the federal law, but they want us to pay (the enforcement costs)," he said.
Sage said the assessment for Fonner Park, if it were to opt in and adopt the HISA rules, would be about $250,000 this year, and that doesn't include any costs related to potentially having to hire additional staff.
Fonner Park CEO Chris Kotulak called the rules "unreasonable and overreaching" and said they present "demands and obstacles that a racetrack our size cannot achieve or endure."
Kotulak said the Grand Island track made $450,000 last year on interstate simulcasting, so it expects to lose a similar amount this year by not doing it during its 37-day race calendar. Half of that goes to the Nebraska Horsemen’s Benevolent and Protective Association for race purses, which means they will likely be smaller this year as well, he said.
"It’s a shame it’s come to this,†Kotulak said.
In-state simulcasting is unaffected, meaning people still can watch Fonner Park races and place bets at other Nebraska tracks. Sage said the track also can simulcast to Canada and other countries.
In a statement, the Horseracing Integrity and Safety Authority said it has been trying to work with Fonner Park to come up with a solution.
"We have engaged in conversation with the management team at Fonner Park and offered to work with them to find constructive solutions to bring the track into compliance with HISA’s enhanced safety protocols," the organization said in an email. "As with all other state commissions and tracks, HISA is eager to find workable solutions while ensuring compliance with the law."
In 2020, when the pandemic shut down most tracks, Fonner Park continued to race and drew big numbers for its live cards simulcast across the country.
This season, Fonner Park is not the only track to forgo interstate simulcasting because of uncertainties surrounding HISA.
Two racetracks in Texas, Sam Houston Race Park and Lone Star Park, have been running races without interstate simulcasting at the direction of the Texas Racing Commission, which led to a 90% decline in the tracks' racing handle, according to a report from industry publication The Daily Racing Form.
The Fifth Circuit Court of Appeals ruled the HISA law unconstitutional, meaning race tracks in Texas and two other states, Louisiana and Mississippi, are not currently subject to it.
Fonner Park, along with the Lincoln and Omaha race tracks, the Nebraska Horsemen’s Benevolent and Protective Association and the Racing and Gaming Commission, have joined a lawsuit seeking a nationwide injunction against HISA.
But Kotulak said that lawsuit has not "advanced with sufficient clarity to ensure that HISA rules would not be applicable to us. Challenging federal regulations is a gamble my board has currently chosen not to make, as this would leave Fonner Park splayed open and at the mercy of a lengthy judicial process and costly legal circumstances that would significantly damage Fonner Park and our horsemen."
Lynne McNally, CEO of the Nebraska Horsemen’s Benevolent and Protective Association, said the organization "feels very strongly" that HISA is unconstitutional.
"We're prepared to pursue the matter legally until we have no other options," she said, noting that includes appealing to the U.S. Supreme Court if necessary.
The law will not immediately affect the Lincoln track, which the horsemen's group operates, because it does not have any plans to simulcast races this year, McNally said.
Sage said the only other Nebraska track that simulcast races last year was Ag Park in Columbus.
Tom Jackson, with Columbus Exposition and Racing, said it also does not plan to simulcast races outside of Nebraska this year because of what he said would be "astronomical" costs to bring the Ag Park facility into compliance with HISA. The Columbus races are scheduled to take place on weekends in October.
However, Jackson said the new Columbus track and casino, being built at U.S. 81 and U.S. 30 on the northwest side of Columbus, will be HISA-compliant and plans to offer simulcasting when it opens in 2024, assuming it can afford the HISA assessment.