LEXINGTON, Ky. – The Monday announcement by Sen. Mitch McConnell that he supports federal legislation seeking to unify medication rules across the United States was unquestionably a major coup for those who support the bill. But despite grand talk of a consensus on the bill at the Monday conference, there remains strong pockets of resistance to the legislation throughout the racing industry. In fact, the “consensus” announced Monday amounted to the conversion of a single industry heavyweight, Churchill Downs Inc., which is headquartered in McConnell’s hometown. Churchill officials had said as recently as earlier this year that they opposed the bill, and the company’s influence with McConnell had likely held the Senate Majority Leader back in the past. While supporters of the bill have succeeded in broadening their base among horsemen over the past two years, the National Horsemen’s Benevolent and Protective Association, which claims to represent 30,000 owners and trainers, remains reluctant to offer its support for a bill that has been crafted without their representatives at the table. And talk by the supporters Monday of a “bargain” among the industry’s major players appears to have re-ruffled its feathers considerably. “I can tell you that we were never consulted,” said Eric Hamelback, chief executive officer of the National HBPA, in a statement released late Monday night. “Contrary to an erroneous statement made by another elected official at today’s announcement, the HBPA was not made aware of any ‘compromise’ negotiations until a deal had already been reached, nor has the board of the National HBPA even been asked for its support.” It remains to be seen whether the National HBPA can muster enough support in Congress to block what could ultimately be a bargain hashed out at the highest levels of the federal government, namely, a deal between McConnell, a Republican, and the Democratic Speaker of the House, Nancy Pelosi. McConnell said Monday that there are a variety of channels that he could use to push the legislation through Congress, and several officials said after the announcement that with McConnell and Churchill on board, the bill’s passage was only a matter of when, rather than if. With Churchill now behind it, support for the bill is strong. Under a coalition forged by The Jockey Club, the racing companies that have lined up behind the bill include The Stronach Group, the New York Racing Association, Keeneland, Del Mar, and Breeders’ Cup. The bill also has support from the Thoroughbred Owners and Breeders Association; a variety of state breeders’ organizations; a national coalition of breeders, owners, and trainers called the Water Hay Oats Alliance, and the Humane Society of the United States. The National Thoroughbred Horsemen’s Association, a trainers’ group that broke off from the National HBPA decades ago, also said that it is on board after the Monday announcement. Under the changes to the bill that McConnell said he supported, the racing industry would create its own “independent” regulatory board that would be charged with devising policies covering medication and racetrack safety. Five of the nine members of the board would be required to have no relationship to the racing industry in the past or present, while four of the members would be allowed to have racing experience but could not have any current financial ties to any racing entity, the supporters said Monday. Although the board would be registered as a private, non-profit company, the board would be under the purview of the Federal Trade Commission. The board also would contract out its medication enforcement and testing responsibilities to the United States Anti-Doping Agency, another private, non-profit company. The USADA provides a similar service to the U.S. Olympic team (with the exception, notably, of the U.S. Equestrian team), and to the Ultimate Fighting Championship league. Under the previous version of the bill, the USADA would have controlled the majority of the appointments to the regulatory board, which had made some racing constituents uneasy due to its lack of experience with animal drug-testing policies. USADA “will not be dominating the board, it will be contracting with the board as the enforcement agency,” said Bill Lear Jr., vice chairman of The Jockey Club who has played a leading role in drafting the various forms of the bill that have been languishing in Congress since 2015. The structure outlined by the previous version of the bill also had raised some constitutional anti-trust concerns, and several racing officials said after the announcement yesterday that the new structure created a smoother glidepath should anyone mount a constitutional challenge to the legislation. Funding for the effort remains an open question. Lear said that a budget for the effort has yet “to be determined” (it’s easier to read that statement as saying that supporters of the bill do not yet want to disclose estimates for a budget given the objections it might engender). However, Lear did say that under one funding proposal, the bill would require all “persons that provide goods and services” to horses entered to race to make a contribution. Under another funding mechanism, Lear said, states would be required to figure out how to fund “their respective shares” of the budget based on the level of regulated racing activity in the jurisdiction. For example, New York would be responsible for a far larger share than, say, Nebraska. “People tend to think you’re going to charge X amount per start, and the fear is that that is only going to be borne by one segment of the industry, which is the people who start horses or the tracks that run races,” Lear said. Lear also said that the racing industry would see some savings on its current level of regulation due to “economies of scale” and the fact that racing will likely adopt drug-testing policies that do away with requirements for every winner of every race to be tested for a wide variety of therapeutic and performance-enhancing substances. Nearly every major sport in the world has moved in that direction, under a policy called “intelligence-based testing” that combines mathematical analysis with boots-on-the-ground information gathering. Testing every winner “wastes a lot of dollars,” Lear said. “Under intelligence-based testing, we have the ability to test horses when we think they need to be tested and for what.” Racing states have tested the winner of every race for decades, going back to when drug-testing became a requirement in the industry, and only in the last decade have some jurisdictions moved away from testing the first three finishers in every race. According to the Association of Racing Commissioners International, only 0.55 percent of all drug tests conducted in the United States last year returned a positive finding, and 90 percent of those positives were for regulated medications, so the numbers seem to support a move to targeted testing. But it remains to be seen whether horseplayers, a notoriously suspicious lot, will accept a system that does not test every winner. Another change to the legislation is that the regulatory board will now also devise policies designed to reduce equine fatalities, such as racing surface protocols. Among some horsemen’s groups, the lack of that focus has recently been a point for criticism, especially as racing made national headlines in the mainstream media last year due to a spate of deaths at Santa Anita racetrack that led many tracks to put in place more stringent policies on veterinary practices and regulatory oversight. Tracks that have put the policies in place contend that the new protocols have led to significant reductions in the racing of potentially unsound horses. Under The Jockey Club’s messaging strategies to build support for the bill, many trainers felt as if they were being singled out for criticism and blame. Many trainers also felt that their positions on medication issues were being disregarded, especially on the raceday use of furosemide, the diuretic better known as Lasix that is used to mitigate bleeding in the lungs. But supporters of efforts for limited bans on the raceday use of Lasix have made massive progress on that issue recently, with bans on raceday use in 2-year-old races implemented this year in California, New York, Kentucky, Maryland, and Florida (by and large, those bans will be extended to graded stakes races next year). Increasingly, the battle over Lasix appears to have been nearly won by those that seek to align North America with the vast majority of other racing jurisdictions, where raceday use of Lasix is banned. According to officials, the new bill does not require a raceday ban on Lasix, as the previous version did, but if the board does decide to prohibit its raceday use, individual racing jurisdictions will be able to petition the board for a three-year waiver on that prohibition, provided that bans already in place for 2-year-olds and graded stakes races remain enforced during the waiver period.  Alan Foreman, chairman of the National THA, said that Lasix use remains a potent issue among horsemen, but he also called the controversy a “red herring” for the larger health and medication issues the racing industry must address if it is going to be relevant in the future. “If you separate out the Lasix issue, it’s not a heavy lift at all for horsemen to support this,” Foreman said, adding that his group still had significant concerns over how the effort would be funded. But given that the bill’s refocus on equine health mirrors the effort the THA has been undergoing for years to unite all the mid-Atlantic and Northeastern racing states behind a set of protocols, the THA is now on board. “If the legislation passes, we will continue to act constructively to address what we think needs to still be addressed, not obstructively,” Foreman said. Joe Appelbaum, president of the New York THA, an affiliate of the National THA, said in an interview that the changes to the bill adding standards and policies for racetrack maintenance and equine safety issues broadened the responsibility of the oversight board so that trainers would not be singled out with bearing the “burden” of blame anytime something goes wrong on the racetrack. He compared the broader emphasis of the bill with the results of a task force set up in 2012 after a spate of deaths at Aqueduct racetrack in Queens, which led to an effort at consensus-building between all equine constituencies in the state to devise new policies. “There’s no fairy dust here, no single thing that makes all the problems go away,” Appelbaum said. “The way things get done is with everyone on board, and we think these new components put everyone on the same page.”