Fort Lauderdale, FL — A Florida equestrian trainer Thursday urged a federal court to temporarily halt the enforcement of a law regulating horse racing safety, arguing that delegating oversight authority to a private corporation is unconstitutional although a judge declined to immediately rule and instead sought clarity on the issue of immunity.
U.S. District Judge David S. Leibowitz declined to issue a ruling on the motion for a preliminary injunction brought by Florida Thoroughbred trainer Philip Serpe following a hearing in Fort Lauderdale federal court, but the judge ordered the parties, including the Federal Trade Commission, to submit briefing within 15 days on whether the Horseracing Integrity and Safety Authority Inc. is protected by sovereign immunity.
Serpe brought a federal complaint against the FTC and the Horseracing Authority in October 2024, claiming the Horseracing Integrity and Safety Act approved by Congress in 2020 is unconstitutional and then seeking an injunction, saying he will be irreparably harmed by his suspension for an alleged violation of anti-doping rules that has been enforced by the private entity.
“I’m not making final ruling today, but irreparable harm is the sine qua non of a preliminary injunction,” Judge Leibowitz said. “We’re talking about a duly enacted act of Congress.”
Serpe trained Fast Kimmie, a 5-year-old mare who finished first in a race at the Saratoga Racetrack on Aug. 10, 2024, according to the Serpe’s complaint. After winning the race, “A” and “B” samples of Fast Kimmie’s blood and urine were taken, and the horse allegedly tested positive for Clenbuterol, a banned substance in horseracing.
Under HISA, the Horseracing Authority issues regulations on banned and controlled substances in horseracing through the Anti-Doping and Medication Control Program, enforcement of which is contracted through Drug Free Sport LLC, another private entity, according to Serpe’s lawsuit. He adds that enforcement is conducted through Horseracing Integrity and Welfare Unit — another private entity created under the federal regulatory scheme.
Serpe said he was notified by the HIWU that Fast Kimmie tested positive for Clenbuterol although he denied ever giving the substance to his horse and demanded that a second “B” urine sample that was taken after the race also get tested, in addition to DNA and hair tests. A blood sample turned up negative for the Clenbuterol although the second urine sample confirmed the presence of the banned substance, according to the suit.
Threatened with a fine of up to $25,000, disqualification of Fast Kimmie’s race result, a multiyear suspension and other potential sanctions, Serpe contends that he is only allowed to contest the accusations through arbitration under HISA.
HISA, Serpe argues, is unconstitutional because it violates the Seventh Amendment by eliminating his right to a jury trial, adding that giving federal regulatory power to HISA violates the private non-delegation doctrine.
Last October, the U.S. Supreme Court stayed an appellate court ruling blocking the law, which was initially put in place following a series of high-profile horse deaths and doping scandals. The stay was put in place as the high court decides to hear appeals brought by the Horseracing Authority and the FTC.
Bradford J. Beilly of Bradford J. Beilly PA, who represents Serpe, told Judge Liebowitz his client is facing a “here and now” injury.
“We’ve talked about irreparable injury in the complaint, reputational harm, loss of business, the process hanging over Mr. Serpe’s head is causing him to lose horses,” Beilly said. “Owners don’t want to give horses to somebody who may end up being suspended because they may have to give the horses to somebody else.”
Lide E. Paterno of Akin Gump Strauss Hauer & Feld LLP, who represents the Horseracing Authority, which is also listed as a defendant in Serpe’s lawsuit, said there was no irreparable harm and added that there’s no case law to support an injury by “just being subject to arbitration and one that is alleged to be unconstitutional.”
“For all the reason you said about the facts need to unfold and claim is not ripe is why we think a Seventh Amendment claim doesn’t exist here,” Paterno told Judge Leibowitz.
Taylor Pitz of the U.S. Department of Justice, who represents the FTC, took no position on sovereign immunity but said she would be happy to run it up the chain of command. She added that the plaintiff didn’t establish irreparable harm in neither his filings nor his arguments.
Judge Leibowitz gave an April 25 deadline for briefing on sovereign immunity, saying it’s important for Serpe to get a ruling on preliminary injunction.
Serpe is represented by Bradford J. Beilly of Bradford J. Beilly PA and J. Austin Hatfield of Frost Brown Todd LLP.
HISA is represented by Lide E. Paterno and Pratik A. Shah of Akin Gump Strauss Hauer & Feld LLP, Johnny P. ElHachem of Holland & Knight LLP, and John C. Roach of Ransdell Roach & Royse PLLC.
The FTC is represented by Taylor Pitz of the U.S. Department of Justice.
The case is Serpe v. Federal Trade Commission et al., case number 0:24-cv-61939, in the U.S. District Court for the Southern District of Florida.