The Kentucky Horse Racing Commission (KHRC) voted 10-0 Friday to deny stays of penalties while trainer Bob Baffert and owner Amr Zedan appeal their equine drug positive rulings related to Medina Spirit's disqualification from the 2021 GI Kentucky Derby.
One of Baffert's attorneys, W. Craig Robertson III, told TDN after the vote that the decision was “very disappointing.” He added that “I have never seen the KHRC not grant a stay in the past. We will take the matter back up with the Franklin Circuit Court on Mar. 17.”
Robertson is referring to an active court case initiated Feb. 28 by Baffert and Zedan to keep their penalization from being enforced while their case gets appealed at the commission level. When their request for an injunction came before that court Mar. 2, the judge said he would hold off on a full hearing for the matter until after the KHRC had a chance to vote on the stay.
Baffert is facing a 90-day suspension and $7,500 fine for now-deceased Medina Spirit's betamethasone overage in the 2021 Derby. Zedan has been ordered by the KHRC to forfeit his colt's purse winnings.
The Mar. 4 KHRC hearing was split up into three parts: First, attorneys on each side (one for Baffert/Zedan and one for the KHRC) were allowed 10 minutes to state their cases. Then the KHRC voted to go into executive session to discuss that matter. That session lasted about 30 minutes and was kept from the public. Then the board reconvened in open session for a roll call vote with zero public discussion.
Ten commissioners voted to deny a stay. Three (Kerry Cauthen, Lesley Howard, Charles O'Connor) abstained because of an “actual or perceived conflict of interest.” Tom Riddle appeared to be muted on the Zoom feed and did not cast an audible voice vote.
Attorney Clark Brewster, representing Baffert and Zedan, said that by refusing to grant a stay, the KHRC was administering a “devastating virtual death blow” to Baffert's business.
After the vote, Brewster told TDN in a phone interview that the lack of a stay would mean the disbanding of Baffert's entire racing stable.
“He's got 88 horses. He's got 70 different [employees] who are the principal earners for their families. It's irresponsible to not allow him an opportunity to put on his evidence and have people judge that evidence and those facts honestly and objectively without bias or an agenda,” Brewster said.
“Do I think the court [will] grant a stay? I can't conceive of a situation where they would not,” Brewster added.
But with the threat of having to shut down his business for 90 days still looming as a very real possibility, Brewster was asked if Baffert was actively making contingency plans for that outcome.
“Well, I haven't discussed that, honestly, because I'm very confident [that the court will grant a stay],” Brewster said.
Brewster added that courts generally take a hard look at situations in which an agency like the KHRC is “the investigator, the prosecutor, the judge and the jury. You have to really look at making sure there's no bias or there's no particular conflicts in that setting before you allow [the agency] to adjudicate those facts…. I mean, the rules don't even permit a 90-day suspension.”
TDN asked Brewster directly if come May 7, he believes Baffert will have starters in the Kentucky Derby considering both KHRC's ruling against him and the private-property banishment imposed upon him by Churchill Downs.
“It just depends whether the decision-makers, based upon the facts that we have, are objective and dispassionate and neutral,” Brewster said. “[If so] then the answer is 'certainly.' If we don't have the opportunity to get to a spot where that evidence can be decided by a neutral, detached decision-maker, then it's in doubt.”
Brewster's argument at Friday's KHRC meeting largely focused on the stay itself, which had been denied Feb. 25 by KHRC executive director Marc Guilfoil. But he also talked about the difference between betamethasone's administration via the skin rash ointment Otomax (which is how Baffert said Medina Spirit came up positive) versus intra-articular injection to help with joint discomfort (which Baffert denies administering).
“The [denial of the] stay was based upon one line from Mr. Guilfoil that said there's no good basis,” Brewster said during his presentation. “But we never had a conversation with Mr. Guilfoil. He wasn't present at the hearing. I don't know how we could not have had an opportunity to address that with him before he issued the denial.”
Brewster also told the KHRC that the only factual findings that the stewards made dealt with Baffert's recent history of medication violations. But, he argued, Baffert was not given any opportunity to see that evidence or be allowed to comment on or refute it.
“The stewards' ruling in this matter–we don't really know what they ruled. There's no facts. [State law] requires there to be factual findings. What are the facts? What did they decide? We put on a pretty extensive presentation of evidence, both in testimony and in rules and in literature. None of it was commented on,” Brewster said.
“We don't know whether they rejected the testimony. We don't know whether they found [the betamethasone overage to have come from an] ointment or an injectable. We don't know. There's no way to tell. And the law, in Kentucky particularly, it's very clear that if you don't have [findings] articulated, there can't be deference granted to it. In other words, an appellate court or a reviewing body couldn't give credence to a report that punished someone that had no factual findings,” Brewster said.
“The truth of the matter is this case really comes down to a really fine point. And that is, betamethasone is regulated in Kentucky…on the basis of an intra-articular injection. It specifies the exact medication and has a 14-day restricted administration time. That's it…. There has never been a threshold set in the rules…. That's a substantial issue that will be litigated…ultimately in a court. But to disregard not even a reference of it in the findings, is not justifiable sufficiently to have punishment imposed–devastating punishment–without a stay,” Brewster said.
“Betamethasone is a permitted therapeutic medication under Kentucky. Everyone we talked to understood [the KHRC rule pertains to] the injectable, not the salve. But rather, the administration [of] a salve deposits very low bioavailability in a horse. The testimony, irrefutably, at the hearing in front of the stewards [showed] it couldn't possibly have any possible effect on the horse itself,” Brewster said.
“This isn't the kind of violation, any way you look at it, that would warrant a 90-day suspension or that would result in a massive fine [and] the disbanding his barn. This is an overreaction, I believe. But without the factual findings set forth, we don't know what the stewards thought.”
The KHRC adhered strictly to the 10-minute-per-lawyer time limit, and the video feed promptly cut of Brewster in mid-sentence while he was wrapping up his remote presentation.
Jennifer Wolsing, the general counsel for the KHRC, told commissioners that “the question before you is whether there is good cause to grant a stay.”
Wolsing referenced Baffert's history of drug violations in roughly the year preceding Medina Spirit's positive, and also noted the trainer's public avowals regarding better medication oversight in his racing stable and his subsequent attempts to shift the source of the betamethasone that was found in Medina Spirit's system.
“The effect of [all] this was to diminish confidence in an entire industry–breeding, racing and sales,” Wolsing argued.
“The science does not support Mr. Baffert's theory that betamethasone makes a difference to the horse by route of administration. To put it simply, betamethasone by any other name is still a banned substance on race day…. The source of the betamethasone is irrelevant to the pharmacological impact on the horse,” Wolsing said.
“The most important thing that we have to remember as regulators is that our regulations reflect the science. This is what we are here to uphold,” Wolsing said.
“The threshold limit for betamethasone is not stated, which means the threshold is 'limit of detection.' We have threshold limitations for some medications. But we do not have threshold limitations for betamethasone.
“I would also add that in our regulations, Class C betamethasone is not divvied up into betamethasone valerate, betamethasone acetate; anything like that. It is just plain betamethasone, in all of its forms, is a Class C medication if it is present in the horse's system above limit of detection on race date,” Wolsing said.
“Now maybe this betamethasone did come from Otomax. Maybe it didn't. But when you look at our regulations, that doesn't make a difference. And when you look at the science, it doesn't make a difference either.”
Just prior to the vote, Wolsing summed up the KHRC's decision about granting a stay as being about, “Do we want to give Mr. Baffert an opportunity to repeat his negligence, or is it appropriate to deny the stay? The decision is yours, but I certainly recommend that the commission uphold Mr. Guilfoil's decision.”
The KHRC did just as their lawyer recommended, and now the case heads back to court for the Mar. 17 hearing. The judge did say Wednesday that the original Mar. 8 effective date for the penalties would not be allowed to go into effect until after he issues his decision Mar. 21.
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