Hall of Fame trainer Bob Baffert's medication history was a central point of contention at a hearing March 17 to determine whether his impending suspension will have to begin immediately.
Franklin Circuit Court Judge Thomas Wingate heard arguments Thursday from attorneys for Baffert, Zedan Racing, and the Kentucky Horse Racing Commission and he is expected to issue a decision on March 21 as to whether he will uphold or overrule the commission's decision not to grant the trainer a stay.
Baffert had requested the 90-day suspension he was handed after the 2021 Kentucky Derby be stayed until he could complete the appeal process. Thursday's proceedings were intended to address only whether KHRC executive director Marc Guilfoil was justified when he denied Baffert a stay and required the suspension begin as scheduled this month. (The suspension is temporarily held over while the legal arguments about the stay play out.) The hearing was not designed to have Wingate decide on Baffert and Zedan's appeal of the horse's disqualification and the penalties assigned to Baffert.
The KHRC contends that the betamethasone overage from Medina Spirit following last year's Kentucky Derby was Baffert's fourth drug violation in 365 days, following lidocaine positives in Arkansas from Charlatan and Gamine (which were decided by the Arkansas Racing Commission in April 2021) and a betamethasone positive from Gamine after the 2020 Kentucky Oaks. The commission's attorneys say that while it's unusual for the KHRC to deny a trainer a stay while he or she fights a medication positive, it's also highly unusual for them to encounter a trainer with that kind of record in the year leading up to the violation at hand.
Craig Robertson, attorney for Baffert, argued that Medina Spirit's positive wasn't his fourth in 365 days – it was his second. Robertson claims that the Arkansas positives don't count as violations because on appeal, the commission voted to restore the two horses to their original finish positions and reverse the stewards' decision to suspend Baffert.
That was a point of confusion for Wingate – were the two Arkansas drug tests violations, or weren't they?
Testifying on behalf of the KHRC, Guilfoil said that Arkansas did not vacate the fines stewards had levied against Baffert in those two cases, so as far as the commission was concerned, they were apparently still violations.
“If they weren't violations, he wouldn't have received anything,” said Guilfoil.
Read our previous reporting on the Arkansas cases here.
Guilfoil testified that Baffert's statements to the media following Gamine's betamethasone positive pledging to implement better procedures and oversight regarding therapeutic medications, followed by another therapeutic medication violation months later, did factor into his decision. While arguing for the KHRC, counsel Jennifer Wolsing said the decision to deny a stay came from the commission's interest in protecting the betting public, racing horses, integrity in the sport and also the public perception of integrity in racing.
Even compared to other large barns running large numbers of horses, Guilfoil said Baffert had a high rate of positives per runner. According to KHRC figures, Baffert had one violation for every 88 starts in the one-year time period at issue, while Steve Asmussen had one for every 2,500 horses run.
Robertson, by contrast, argued that the KHRC had unfairly attacked his client's reputation with a “false narrative”, and that a 90-day suspension would effectively “end a Hall of Fame career.”
Wolsing disputed the notion that Baffert's career would necessarily be over due to a 90-day suspension, and Robertson's assertion that his employees would be out of jobs for that timeframe. California regulations require a trainer serving a suspension of that length to disperse horses, remove signage from the barn area, and turn the operation over to someone not previously employed by the suspended trainer as an assistant. Wolsing contended that Baffert could do this, and another trainer would likely take the employees along with the new horses.
Robertson also repeatedly characterized the KHRC's stay denial as “unprecedented” and it seems both sides agree the commission does not often deny stays. Wolsing did point to a few instances in recent years where stays were denied, although they were in somewhat different circumstances. Jockey Robby Albarado had a stay denied when he was contending with criminal charges relating to domestic violence. Trainer Otabek Umarov was suspended ten years after refusing to present a horse for out-of-competition testing and the KHRC denied that stay; that denial was appealed to the circuit court, but was settled out of court. Umarov ultimately took a five-year suspension.
The most similar case Wolsing could site was that of trainer Carlos Lopez, who had four Class B and C violations in 2014 and 2015 and was given a 150-day suspension, but Lopez did not appeal his suspension, so the KHRC did not have to determine whether or not to grant a stay.
Whatever Wingate decides, he pointed out on Thursday, it will be possible for the losing side to appeal his decision to the state appeals court. He intends to write an order giving the losing party 10 days to do that.
The next step for Baffert and Zedan's appeals of the stewards' rulings will be a hearing set to begin before a hearing officer on April 18. The hearing is expected to last as many as four days, and after that the hearing officer will have 60 days to issue a decision. The hearing officer will be someone appointed by the KHRC and will be conducting the hearing on the behalf of the regulatory body. Any decision by that hearing officer may be appealed to Franklin Circuit Court, although Wingate seemed to suggest Thursday that he would likely recuse himself from hearing the appeal, since he has heard some legal arguments in the case in the process of adjudicating the stay of suspension.
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