The hearing to determine whether the New York Racing Association will be permitted to exclude Hall of Famer trainer Bob Baffert continued through its second day of testimony Jan. 25 with testimony from witnesses on behalf of the racing association.
Tuesday's proceedings were taken up with the remainder of cross-examination of Rick Goodell, an attorney who has represented the New York State Gaming Commission, as well as testimony from Dr. Pierre-Louis Toutain, veterinary pharmacologist, Dr. Camie Heleski, senior lecturer for the University of Kentucky, and Jeffrey Cannizzo, senior director of government affairs for NYRA.
Here are a few of the highlights:
- Justice O. Peter Sherwood, who is serving as hearing officer for the proceedings, grew testy at times Tuesday with Baffert's legal team. Cross examination of Goodell resulted in Baffert attorney Clark Brewster asking repeatedly about New York's threshold levels and whether a test under those levels would result in a positive (in New York it might, if the commission has other evidence a medication was given outside of the permitted timeframe). Sherwood also shut down one of Brewster's lines of questioning of Cannizzo, which was focused on the lack of conflict of interest rules for NYRA board members. Brewster seemed focused on the fact that the New York State Gaming Commission does not permit board members or employees to have active ownership interests in racing, while many NYRA board members do. Sherwood reminded Brewster that in his view, previous rulings from U.S. District Judge Carol Bagley Amon have established that NYRA has the legal authority, based on precedence from a 1982 case before the New York State Supreme Court, to rule a trainer off, and that this point is not considered up for debate.
“What I'm saying now, I've told you before,” Sherwood said to Brewster. “I've cited the case Judge Amon cited. I've cited it in written opinions. I've told you that at this hearing but for some reason or another, you're ignoring it.”
Brewster repeatedly thanked Sherwood for putting his feelings about that legal authority into the record.
- Toutain was asked to testify to the potential welfare and performance implications of the drugs for which Baffert horses have tested positive since 2019. Toutain resides in France, and is a distance professor for the University of London's Royal Veterinary College.Toutain was asked about phenylbutazone, and whether it's appropriate to use in the course of training horses.
“No,” said Toutain. “The appropriate use is to suppress the pain for horses and not get the horse to compete with an underlying condition. When you treat horses with phenylbutazone, normally you have to stop on the horse.”
Toutain also asserted that the use of bute could increase the risk of injury “because you are masking underlying conditions that can be severe. The purpose of phenylbutazone is to help the horse, not to mask any injuries.”
Toutain agreed that bute, lidocaine, and betamethasone would not enhance a healthy horse's maximum athletic effort, but were instead potentially problematic because of what they could be hiding.
As to corticosteroids like betamethasone, Toutain cited research stating that horses who were treated with corticosteroids had four times greater risk of catastrophic injury, although it was not clear when those administrations occurred in relationship to the injuries or what doses were used. Toutain also pointed out that a finding in blood of a corticosteroid at a low level does not presuppose the origin of the corticosteroid. A low systemic level of the drug could mean it was given intravenously some time before, or it could have emerged as a result of an intra-articular administration. In cases when a corticosteroid is injected into a joint, low levels of the drug will eventually be found circulating in the body but the concentration will always be much higher in the joint that took the injection.
“Just because you detect nothing in the blood does not mean there is nothing in the joint,” he said.
- Toutain admitted his field of expertise was pharmacology and not regulation. Although he has been consulted in the construction of regulation for international racing, that is not his primary occupation.
- As to lidocaine, Toutain said there is a relatively low threshold for its use because the drug spikes in the blood quickly and dissipates quickly. It likely has maximum effect somewhere in the first hour of an administration, but Toutain said it's often regulated in such a way to prevent administration within 24 hours of a race.
- Heleski testified primarily about the social license to operate, a concept that applies to many industries beyond animal sports. Heleski explained that the phrase refers to social or public acceptance which grants permission for an organization to conduct a given activity. This concept has been used in the past to apply to the mining and forestry industries, and has been applied in recent years to equine activities, including horse racing.
Heleski said that in order to tolerate a given equine sport, the public needs to feel the animals are treated appropriately, and that there is accountability and transparency present in the sport. Attorneys for NYRA asked Heleski about the many headlines in mainstream news media which have dogged Baffert in recent years, as well as the Saturday Night Live skit which poked fun at his interview tour after he announced the betamethasone overage for Medina Spirit. These things, she said, could impact the sport's social license to operate.
“Many people will talk about the issue of drugs and medications and they have a big concern,” she said. “They don't necessarily go into the nuance of levels. Most of the time, they feel like if there was a drug or medication noted, it's bad. They put it all under the umbrella of doping.
“If someone is so well known in a certain sport or industry that even the casual racing fan can identify them, they're more likely to make an impact when some news takes place.”
Baffert's attorneys asked Heleski whether it was Baffert's fault that the general public does not grasp the difference between various therapeutic medications. Attorney W. Craig Robertson also questioned the validity of the concept of the social license to operate, since he said it is not an actual, physical license given out by a central authority and seems an amorphous concept.
- Heleski pointed to several key problematic areas in racing which she believes detract from the sport's social license to operate — equine deaths, whip use, medication problems, and aftercare. On cross examination, NYRA attorneys pointed out to Heleski that Baffert has had more than 70 horses die in his care since launching his training career.
Following the day's proceedings, a representative of Trident DMG distributed the following statement to media on behalf of Baffert's legal team. According to its website, Trident is a strategic communications, public relations, and crisis management firm. The statement is attributed to Brewster.
“By jumping to false conclusions and ignoring the facts, NYRA is fueling a bandwagon smear campaign against Mr. Baffert for its own private, competitive purposes – an effort that threatens the integrity of the entire industry. Here are five undisputed facts that support why Mr. Baffert's suspension by NYRA should be overturned immediately:
- The New York Gaming Commission is the exclusive and only regulatory agency for horse racing oversight in the State of New York. NYRA has no seat at the table for regulating racing.
- NYRA's Board is conflicted, comprised of horse owners that directly compete with Mr. Baffert. No wonder they want him banned from New York racing – his horses beat theirs.
- The basis for NYRA's attack is to import rulings from other racing venues about the permissible use of medications that are for therapeutic purposes. Not one racing regulatory agency found grounds to suspend or take action against Mr. Baffert for any of the therapeutic medication threshold overages.
- Of the top 14 thoroughbred horse trainers in New York State, nearly all have had more medical violations than Mr. Baffert has been accused of and not one has been suspended by NYRA, nor has NYRA even attempted to suspend them. In fact, not one of the allegations against Mr. Baffert relates to a single New York racetrack rule violation, and Mr. Baffert has never had a reported medication positive in the state in his 25-plus years of racing.”
The hearing continues at 9:30 a.m. on Jan. 26. Read our reporting from Day 1 here.
The post Baffert/NYRA Hearing, Day 2: Social License To Operate, Ethics Of Therapeutic Drugs Debated appeared first on Horse Racing News | Paulick Report.
