I seriously doubt if trainer Bob Baffert or anyone in his stable knowingly gave scopolamine to Justify prior to his victory in the Grade 1 Santa Anita Derby on April 7, 2018. But the drug showed up above the threshold limit in post-race testing for both the eventual Triple Crown winner and for Hoppertunity, another Baffert runner, who won the G3 Tokyo City Cup the following day at the Arcadia, Calif., track.
Scopolamine has found its way into California hay supplies via jimson weed, so it's not unreasonable to conclude the positive test was a result of environmental contamination. It's also unlikely that the drug's presence at a low yet impermissible level had any impact on performance.
But rules are rules.
According to California Horse Racing Board rule 1859.5 (Disqualification Upon Positive Test Finding), a positive test of drugs in classes 1, 2 or 3 (as defined by the CHRB) “shall require disqualification of the horse from the race in which it participated and forfeiture of any purse … regardless of culpability for the condition of the horse.”
In April 2018, scopolamine was a Class 3 drug under CHRB rules.
CHRB members, meeting in executive session on Aug. 23, 2018, circumvented those rules by voting to not pursue the matter, acceding to the recommendations of the CHRB's equine medical director, Dr. Rick Arthur, and the board's then-executive director, Rick Baedeker.
There is an old expression that “we don't know what we don't know.” In this case, we don't know how many previous times the board took such actions, stopping an alleged medication violation before it reached the stewards for a hearing. We do know the CHRB has prosecuted numerous cases of positive drug tests that any rational person would assume resulted from environmental contamination.
So what was different about this case?
For starters, by the time this came before the CHRB in August 2018, Justify had a) won the Triple Crown, b) had his breeding rights sold for a record $75 million, and c) been retired from racing. He was also trained by a Hall of Famer who had become the “face” of the sport.
Additionally, there was a can of worms labeled “Derby Points” that some might try to open if Justify was disqualified from the Santa Anita Derby, a race that gave the son of Scat Daddy the points needed to qualify for the Kentucky Derby field.
So the CHRB voted behind closed doors to end the investigation and successfully tamped down what could have been an embarrassing situation – until a September 2019 report by Joe Drape in the New York Times exposed what had happened.
There's another old expression that “it's not the crime, it's the coverup.” Scopolamine positives have been called before in California. Trainers were not sanctioned but their horses disqualified. No one likes when that happens, but it's a matter of following the rules. Maybe the rules need to be changed to accommodate environmental contaminations, but until that happens it isn't right for regulators to circumvent the rules they don't like.
The New York Times article hit as California racing was trying to recover from the high-profile equine fatality spike at Santa Anita earlier in the year that thrust the sport in the national spotlight in a most unflattering way. The handling of the Justify case only poured gasoline onto the regulatory fire.
The controversies riled the office of Gov. Gavin Newsom and dominoes started falling at the CHRB. Chuck Winner had already stepped down as board chairman when the Justify story broke. Vice chair Madeline Auerbach resigned from the board when she was passed over to chair the organization. Executive director Baedeker announced that he was retiring and other staff positions changed. New appointees came from outside the industry and without direct investment in racing or conflicts of interest.
Mick Ruis, who owned Santa Anita Derby runner-up Bolt d'Oro, sued the CHRB in January 2020, claiming he was entitled to the $600,000 first-place money from the race. In July, Ruis reached an agreement to settle the lawsuit when the CHRB said it would file a complaint to conduct a purse disqualification hearing on Justify. That hearing, which also included a complaint filed on Hoppertunity's positive test, was conducted on Oct. 29.
Here's where things start veering off into La-La Land.
The three stewards, John Herbuveaux, Kim Sawyer and Ron Church, did their due diligence sifting through the evidence and testimony. They put together a lengthy findings of fact and timeline, including making note that scopolamine changed from a Class 3 drug to Class 4 months after the Santa Anita Derby and Tokyo City Cup were run. The stewards did all the things you would expect them to do when conducting a hearing of this type and then making a determination.
Then they took the ultimate copout. No matter what the evidence was, no matter what the rules stated, they dismissed the complaint “because the CHRB has already ruled on this matter, in executive session, at the Aug. 23, 2018, meeting.”
Are you kidding me?
Unless this was some kind of carefully orchestrated kabuki theater involving CHRB members, staff and stewards to go through the motions of a hearing in order to satisfy the terms of the settlement agreement with Ruis – which seems highly unlikely – the final order by the stewards is mind-boggling.
If the stewards felt as though the matter was dismissed in August 2018, why did they go to the trouble of conducting a hearing? Couldn't they have sought clarification from legal counsel at the CHRB as to whether or not the matter was settled?
The order by the stewards may not be the final word. Attorney Darrell Vienna, representing Ruis, pointed out that California's Business and Professions Code, section 19517, states the CHRB “may overrule any steward's decision other than a decision to disqualify a horse due to a foul or a riding or driving infraction in a race, if a preponderance of the evidence indicates any of the following:
“1) The steward mistakenly interpreted the law.
“2) New evidence of a convincing nature is produced
“3) The best interests of racing and the state may be better served.
“…Furthermore, any decision pertaining to the distribution of purses may be changed only if a claim is made in writing to the board by one of the involved owners or trainers, and a preponderance of the evidence clearly indicates to the board that one or more of the grounds for protest, as outlined in regulations adopted by the board, has been substantiated.”
Within hours of the decision by the stewards to dismiss the complaint, Vienna filed a claim with the board on behalf of Ruis, asking for the CHRB to overrule the stewards.
The ball is back in the CHRB's court, but these are not the same CHRB members who opted to bury this matter in August 2018.
That's my view from the eighth pole.
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