2021 kentucky derby | Horse Racing Free Tips

NYRA Vs. Baffert Hearing Concludes; Several Steps Remain Before A Decision

Attorneys presented their closing arguments Friday in the week-long hearing between the New York Racing Association and trainer Bob Baffert in NYRA's pursuit to suspend Baffert.

(Read our recaps of previous hearing sessions here, here, here, and here.)

Closing arguments largely reviewed the evidence heard from witnesses over the previous four days. Henry Greenberg, representing NYRA, reiterated the company's concerns were not just based on the six drug violations Baffert picked up in 14 months or the fact that he had two adjudicated violations and an additional, unheard case on Grade 1 races, but also his public handling of those cases.

“He's got a playbook,” said Greenberg. “…Misstate facts, blame others, and avoid responsibility.

“Amongst the Derbies he has won is the Excuse Derby.”

Greenberg also pointed out that while Baffert's attorneys made much of the fact his drug violations took place outside the state of New York and resulted in no penalties by the New York State Gaming Commission. In fact, Greenberg said, as the owner of NYRA Bets, NYRA takes an interest in integrity issues which impact racing outside New York as well as customers wagering from out of state, and that those comprise a majority of the company's business.

W. Craig Robertson, summarizing Baffert's case for the defense, took issue with what he characterized as inaction by NYRA in previous cases, saying the organization's “hypocrisy knows no bounds.” Rick Dutrow, who was handed and ultimately made to begin serving a 10-year suspension, was allowed to continue racing there while he was appealing the case, and Linda Rice, who had her license revoked with the condition she not reapply for three years, is still saddling horses at its tracks. (Greenberg would later point out that Rice has a temporary restraining order in place preventing that license revocation from becoming active.)

Robertson also pointed to the case of Wayne Potts. NYRA said this week it had launched an investigation into the trainer's status following a report he refused to let one of his horses be loaded onto an equine ambulance in New Jersey this summer. When the Maryland Jockey Club determined in 2020 that Potts had been program training for embattled colleague Marcus Vitali however, NYRA released a statement saying, in part, that it would not revoke his entry privileges because he'd had no license taken against his license in that case.

Vitali will be facing a similar hearing to Baffert regarding possible suspension from NYRA in March.

Robertson said the racetrack ownership group seemed uninterested in Baffert's previous drug cases until last year's Kentucky Derby.

“That's what this case is all about,” he said. “Make no mistake about it, Your Honor. This case is about the Kentucky Derby and nothing else.”

“What are they so upset about?” said Robertson. “It comes down to a press conference and three interviews … A man wearing his heart on his sleeve, and now they want to crucify him for it.”

Robertson said Baffert's career was in the hands of Justice O. Peter Sherwood, pointing out that a suspension from NYRA facilities would negate his ability to ever win another Triple Crown.

Greenberg did not apparently dispute that the Derby and Baffert's subsequent mainstream media interviews which Greenberg said impugned racing officials' credibility was a tipping point for NYRA.

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“Here's what we would expect [of Baffert after the Derby] — that he'd honor the profession that has been so good to him,” said Greenberg “That he comport himself with dignity. That if he made a mistake, it's not a shameful thing to say, 'I'm sorry. I regret it. I'll do better in the future.' That's all we'd expect, that's all anyone would expect. And what we saw was the exact opposite.”

The procedures handbook set out by NYRA indicates that following the conclusion of the hearing, Sherwood will issue a hearing report which will be disseminated to both sides' attorneys and a panel of people appointed by NYRA's president. From there, both sides have one week to submit additional evidence or disagreements with the contents of the report. The panel will review Sherwood's report and any additional materials filed, and will “have the discretion to adopt, modify or reject any or all of the hearing officer's report, including, but not limited to, the appropriate disposition of the proceeding.”

There are ten days allocated for that review process, after which the panel will issue a final decision which is not appealable within NYRA's oversight.

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Baffert: Kentucky Horse Racing Commission Has Hearing Scheduled In Medina Spirit Case For Feb. 7

Hall of Fame trainer Bob Baffert confirmed in a Jan. 27 hearing proceeding that the Kentucky Horse Racing Commission has scheduled a hearing for Feb. 7 in the case of a positive drug test from Medina Spirit after last year's Kentucky Derby.

The Jan. 27 hearing was part of the ongoing proceeding held by the New York Racing Association before a hearing officer to determine whether NYRA can suspend the trainer on a private property basis.

Baffert did not specify whether the Feb. 7 date was a stewards' hearing or a hearing before the full commission. Stewards' hearings in Kentucky are not open to the public.

Eight days after the Kentucky Derby, Baffert held a press conference to announce that he had been informed Medina Spirit had tested positive for the corticosteroid betamethasone. A split sample test later confirmed the presence of the drug. For many months afterwards, Baffert's legal team worked with drug testing experts to do further examinations of the remainder of the split sample to establish whether the betamethasone came from an injected treatment or a topical administration of Otomax. Attorneys have recently indicated that testing has provided results consistent with exposure to Otomax.

The post Baffert: Kentucky Horse Racing Commission Has Hearing Scheduled In Medina Spirit Case For Feb. 7 appeared first on Horse Racing News | Paulick Report.

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Class-Action Bettors Urge Judge Not to Dismiss Derby Suit Against Baffert

Alleging that trainer Bob Baffert “is the Lance Armstrong of the horse racing world” because of a purported years-long pattern of racketeering activity related to the alleged “doping” of Thoroughbreds, a group of horse bettors who brought a class-action lawsuit seeking compensation for damages over the result of the 2021 GI Kentucky Derby urged a federal judge Wednesday not to grant Baffert's motion to dismiss the case.

The original version of the suit, led by Michael Beychok, the winner of the 2012 National Horseplayers Championship, was filed four days after Baffert's disclosure that now-deceased Medina Spirit (Protonico) had tested positive for betamethasone after winning the May 1 Derby.

Split-sample testing at two different labs approved by the Kentucky Horse Racing Commission (KHRC) has since confirmed the betamethasone overage, but no (KHRC) ruling has yet been issued over those findings.

The plaintiffs and class members of the suit have alleged that they “have been cheated out of their property” because they placed wagers on other horses and betting combinations that would have paid off had “the drugged horse” not won the Derby.

“The Plaintiffs here are not asking this Court to determine the outcome of the Kentucky Derby,” Beychok, et al, argued in the Dec. 29 filing in United States District Court (District of New Jersey).

“The stewards of the subject race will be the ones to determine the outcome of the Kentucky Derby. Regardless of the stewards' determination, Defendants have still harmed the Plaintiffs and will continue to harm individuals through Baffert's racketeering scheme. The Court is being asked to hold the Defendants accountable for the racketeering enterprise,” the filing stated.

In addition to asking the court to consider the Derby's potential pari-mutuel payouts as an assessment of damages, the plaintiffs, among other demands, are also seeking an order from the judge stating that the Hall of Fame trainer must divest himself from the sport. Baffert, plus his incorporated racing stable, remain as the only defendants after Medina Spirit's owner, Amr Zedan, was dropped from the suit by the plaintiffs back on June 23.

When Baffert asked the court to dismiss the suit Sept. 1, his filing stated that the plaintiffs “are a group of disgruntled gamblers who placed bets on the 2021 Kentucky Derby and lost.”

Baffert's argument stated that the bettors “attempt to do what courts across the country have routinely rejected: they seek to recoup their gambling losses through a myriad of frivolous claims. No matter how creatively the Plaintiffs attempt to craft their pleadings, they cannot escape the fact that every single court which has looked at gambling losses associated with sporting events has held that no claim can be maintained as a matter of law.”

The class action members begged to differ in Wednesday's filing.

“[Baffert] would have the Court believe that there is no injury because Medina Spirit has yet to be disqualified. The disqualification of Medina Spirit is inconsequential to Plaintiffs' causes of action. The [Racketeer Influenced and Corrupt Organizations Act] violations occurred regardless of Medina Spirit being disqualified. As alleged, Baffert entered Medina Spirit illegally [and] the Baffert enterprise has already successfully harmed Plaintiffs. Once again, Baffert has profited while the Plaintiffs have been robbed of their day at the track.”

The Dec. 29 filing continued: “Plaintiffs have stated causes of action that do not rely upon the horse racing regulations but instead are independent claims existing under federal and state statutory law and state common law. These claims are allowed whether they are allowed under the regulations or not. Defendants argue that Plaintiffs were obligated to follow the rules but side-step any obligation of Baffert's accountability.

“Baffert suggests to the Plaintiffs that if they don't like the rules they don't have to bet. But more to the point, if Baffert doesn't want to be held accountable under the laws set forth by the federal and state legislatures, then he shouldn't conduct an illegal enterprise of racketeering and fraud,” the filing stated.

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Baffert Wins Attorneys’ Fees from NYRA

A federal judge has ordered that the New York Racing Association (NYRA) must pay trainer Bob Baffert $109,124 in legal expenses. Those fees and costs were incurred in the early stages of the trainer's civil rights lawsuit against NYRA, and the court has determined that legal precedents qualified him as the “prevailing party” five months ago when he obtained a preliminary injunction to overcome NYRA's banishment of him from Saratoga, Belmont and Aqueduct.

That figure represents only a partial award. The Hall-of-Fame trainer had been seeking $162,086.

NYRA had argued that he wasn't entitled to any money based on the fact that the overall case has not been fully adjudicated.

But Judge Carol Bagley Amon of United States District Court (Eastern District of New York) wrote in a Dec. 15 order that Baffert does indeed qualify for some reimbursement, quoting from relevant precedents in her ruling.

“First, the preliminary injunction was decided on the merits of Baffert's claims. Over 10 pages of [my] 27-page preliminary injunction opinion were dedicated to finding that 'Baffert has established a likelihood of proving that NYRA's suspension constituted state action, and that the process by which it suspended him violated the Due Process Clause of the Fourteenth Amendment of the United States Constitution…'

“Accordingly, the preliminary injunction was 'governed by [an] assessment of the merits' as required by [precedent]. Second, the preliminary injunction was against a state actor that later changed its procedures, mooting the question. Rather than appeal the preliminary injunction, NYRA changed its suspension procedures such that trainers can no longer be suspended without a pre-suspension hearing….

“Therefore, because Baffert 'neutralized and then caused to be superseded a [state action he] persuasively argued was unconstitutional' and because 'the preliminary injunction [he] secured was never reversed, dissolved, or otherwise undone,' Baffert has, 'unavoidably, prevailed.'”

Amon continued: “At oral argument, Baffert also agreed not to seek damages on his [civil action] claim related to the May 2021 suspension should I grant him attorneys' fees. With this concession, the portion of this case related to the subject matter of the preliminary injunction is complete. That there will be no additional litigation on this topic belies NYRA's worry that there will be serial attorneys' fee litigation regarding the subject matter of the preliminary injunction. Accordingly, I find that attorneys' fees on the preliminary injunction are appropriate at this time.”

NYRA, when it filed a Sept. 27 motion opposing Baffert's expenses, said such an award would be unjust because NYRA's suspension itself was aimed at just ends.

But Amon dismissed that argument: “Following this logic would deny civil rights plaintiffs attorneys' fees in a majority of Section 1983 [civil rights] cases. Section 1983 claims are necessarily brought against state actors, and a state actor will undoubtedly argue that the ends of its policies are in the public's interest,” she wrote.

“And where the state actor has lost on the merits of the Section 1983 claim–in other words, where the court has ruled that the means of its policies were unjust–it would denigrate a plaintiff's constitutional rights to disallow attorneys' fees so that the ends can justify the means.”

NYRA had barred Baffert back on May 17, a bit more than two weeks after the now-deceased Medina Spirit won the GI Kentucky Derby while testing positive for an overage of betamethasone. In the 12 months prior to that positive, four other Baffert trainees had also tested positive for medication overages, two of them in Grade I stakes.

Baffert responded to NYRA's ruling-off by filing a June 14 civil complaint alleging that the ban violated his constitutional right to due process.

On July 14, the eve of the Saratoga season, the court granted Baffert a preliminary injunction that allowed him to race at New York's premier tracks until the lawsuit was adjudicated in full.

On Aug. 25, Baffert petitioned the court to get NYRA to pay for the legal costs he had incurred to that point.

Some of the attorneys who argued Baffert's case billed the seven-time Derby-winning trainer between $450 and $975 hourly. His total $162,086 request covered fees and expenses for six attorneys and two paralegals who performed work on his case.

NYRA had argued that many of the hours billed were duplicative, caused by the overlapping of multiple attorneys from different firms.

Judges have discretion to adjust such expense requests upward or downward based on prevailing rates and the nature of the case. Amon ended up paring down the amount she ordered NYRA to pay by roughly one-third.

She wrote that “the case was high-profile and offered reputational benefits for Baffert's attorneys, especially those attorneys who market themselves as equine law experts.”

The order also stated that “Baffert is correct that the litigation was hotly contested and included quick turnaround of substantial briefing in a high-pressure situation. Moreover, Baffert's attorneys handled the case well, achieving victory on the preliminary injunction with well-argued briefs. Taken together with the previously mentioned case-specific factors, these factors counsel a reasonable rate in the middle of the range.”

But, Amon added, she is not bound to award the actual rates billed by the attorneys that Baffert agreed to pay.

“Baffert's decision to pay a premium to guarantee the attorneys of his choice is relevant, but it does not overwhelm the overall inquiry: what is the 'minimum (rate) necessary to litigate the case effectively?'” the order stated.

The lawyer who billed Baffert the most was the New York-based Charles Michael, who wrote in his declaration that “my $975 hourly rate is within the reasonable rate customarily charged by attorneys with comparable experience.”

Baffert's two next-highest priced attorneys both have long-term expertise in horse racing-related litigation, and they have represented multiple trainer clients in recent high-profile cases across the nation: The Kentucky-based W. Craig Robertson, the lead counsel in the case, charged Baffert $475 hourly for his work. The Oklahoma-based Clark Brewster billed $450 hourly.

The judge ruled that Michael's fee is “far in excess of the high end of the prevailing-rate range for partners in Eastern District civil rights litigation…. Michael has less experience than Robertson and does not have a longstanding relationship with Baffert. Therefore, he merits a slightly lower rate. Accordingly, I find that a rate of $450 per hour is reasonable,” for NYRA to pay.

Robertson's and Brewster's rates were both deemed “reasonable” by Amon.

The judge made further reductions to what NYRA has to pay based on billable hours she said were duplicative. But, she added, “I am unable to determine whether [Brewster's firm] performed duplicative work because its bills are overly vague…. Rarely do Brewster's [billing] descriptions exceed five words.”

To compensate for Brewster's vagueness and “the possibility of duplication obfuscated by those vague entries, I will apply an across-the-board reduction of 33% for the hours claimed by [Brewster's firm],” Amon wrote.

When asked to comment Wednesday on the ruling that it must pay Baffert's partially claimed expenses, a NYRA spokesperson replied with a statement that did not directly address the $109,124 court order.

“NYRA remains focused on protecting the integrity of the sport of Thoroughbred racing in New York and ensuring it is conducted safely,” wrote Patrick McKenna, NYRA's senior director of communications. “To that end, NYRA will conduct an independent hearing beginning on Jan. 24 to determine whether Mr. Baffert has engaged in conduct that is detrimental to the best interests of the sport or potentially injurious to the safety of horses and riders.”

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