2021 kentucky derby | Horse Racing Free Tips

NYRA: Baffert Ban Necessary To Protect Horses, Riders And Ensure Integrity

The United States District Court for the Eastern District of New York should not grant Bob Baffert a preliminary injunction that would permit the embattled trainer to race or stable horses at tracks operated by the New York Racing Association, attorneys for NYRA and The Jockey Club argued in court filings submitted on June 30.

Baffert filed suit against NYRA on June 14, nearly a month after the racing association notified the Hall of Fame trainer that he was temporarily banned from racing or stabling at NYRA tracks while the Kentucky Horse Racing Commission conducts its investigation into the post-race drug positive for Baffert-trained Medina Spirit, who crossed the finish line first in the May 1 Kentucky Derby. Baffert is seeking a temporary and permanent injunction against the ban while claiming his 14^th Amendment Constitutional rights to due process were being violated.

As defendant in the case, NYRA filed a memorandum of law in opposition to Baffert's motion for preliminary injunction. The Jockey Club filed a brief as amicus curiae, or friend of the court, claiming that its role as keeper of the Stud Book gives it a “unique interest in ensuring that when Thoroughbreds enter the breeding shed (where they determine the future of the breed through progeny), they do so with records uninfluenced by the effects of medication.”

Both court filings struck the same note, countering Baffert's argument that he will suffer irreparable harm as a result of his ban from Belmont Park and the upcoming high-profile meeting at Saratoga in upstate New York where a number of graded stakes are run.

The Jockey Club produced statistics from Equibase showing that Baffert, during the period from 2011-20, made a total of 134 starts at NYRA tracks, representing 3.23% of his total 4,146 North American starts over those years. He's averaged five starts each year during the Saratoga meet.

The Jockey Club brief dismisses Baffert's claim that the NYRA ban has “damaged his reputation and prompted a 'mass exodus' of owners” from his stable because of their horses' inability to race at Saratoga while under his care.

“The source of damage to Mr. Baffert's reputation is not the NYRA temporary suspension; rather, the cause is a record of repeated drug testing failures, including most recently after American racing's most famous and highly visible race, the Kentucky Derby,” attorneys for The Jockey Club contend.

The Jockey Club brief also points out that Baffert's complaint only cites one owner transferring a horse or horses to another trainer and does not specify whether that transfer was a result of the NYRA ban, a two-year suspension imposed by Churchill Downs racetrack or “his record of substance violations.”

NYRA's filing states that Baffert balked after being given an opportunity to respond to a May 17 letter from David O'Rourke, the racing association's CEO and president, outlining the reasons for the racing and stabling ban. “NYRA expects to make a final determination regarding the length and terms of your suspension based on information revealed during the course of the ongoing investigation in Kentucky,” O'Rourke wrote. “If you wish to present to NYRA any information, data or arguments concerning this matter, please do so within seven business days from receipt of this letter.”

“Rather than avail himself of this opportunity,” the NYRA court document in response to the lawsuit states, “plaintiff filed this action nearly a month later and now moves for a preliminary injunction … plaintiff's nearly month-long delay in seeking this preliminary injunction undercuts the sense of urgency need to remedy his alleged harm.”

NYRA also counters Baffert's claim that the racing association is unable to suspend him from its tracks because it does not own the grounds on which the tracks are located. “Settled law holds that NYRA had both the common law and regulatory right to exclude anyone, including a licensed trainer, who engages in conduct detrimental to the best interests of racing,” the court filing claims. “Moreover, plaintiff's assertion that NYRA violated his due process rights is incorrect. NYRA was not required to provide plaintiff an opportunity to be heard before issuing a temporary suspension because NYRA's decision was based on probable cause that plaintiff's actions warranted suspension and was necessary to protect the safety of the racehorses and their riders, and required to ensure the integrity of the sport.

“NYRA is obligated to protect its investment, brand and reputation, and supervise activities at its racetracks in a manner that fosters the public's confidence in the safety and honesty of the sport.”

NYRA's response includes a statement from Robert Williams, an attorney and executive director of the New York State Gaming Commission, outlining the rights of exclusion by racetracks in the state and/or stewards working at those tracks.

A second declaration, from Professor Pierre-Louis Toutain, a PhD in pharmacology, states that betamethasone, the corticosteroid detected in Medina Spirit's post-race sample, has a “potent anti-inflammatory effect,” even at picogram levels (the original finding for Medina Spirit was 21 picograms per mililiter). Citing multiple scientific papers, Toutain concludes that “a plasma concentration of 21 pg/mL is significant for betamethasone, a substance which can locally or systemically increase the performance of a racehorse with or without clinical manifestation of inflammation.”

A hearing on the motion for injunctive relief is scheduled for July 12.

Jockey Club brief

NYRA memorandum

Baffert vs. NYRA complaint

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With Spa Meet in the Balance, NYRA Argues for Upholding Baffert Ban

With a July 12 federal court date looming to decide whether or not Bob Baffert's history of equine drug positives will keep him from entering horses at the upcoming and financially lucrative Saratoga Race Course meet, the New York Racing Association (NYRA) on June 30 filed a memorandum of law that opposes the Hall of Fame trainer's request for an injunction to lift the association's ban against him that has been in effect for the past six weeks.

NYRA told Baffert via letter May 17 that he was temporarily not welcome to stable or race at the association's three tracks (Saratoga, Belmont Park and Aqueduct Racetrack) in the wake of his shifting explanations after Medina Spirit (Protonico) tested positive for betamethasone after winning the GI Kentucky Derby. The initial drug positive was confirmed by split-sample testing at a separate lab approved by the Kentucky Horse Racing Commission.

No ruling has yet been issued over those findings, and NYRA explained to Baffert in that letter that a more precise determination regarding the length and terms of his suspension would be based on information revealed during the course of the ongoing investigation in Kentucky.

On June 14, Baffert filed a civil complaint against NYRA, alleging that the association's ban violates his Fourteenth Amendment constitutional right to due process.

In the June 30 filing in United States District Court (Eastern District of New York), attorneys for NYRA wrote that the association believed it had to act swiftly to bar Baffert, lest his presence jeopardize the integrity and reputation of the GI Belmont S., the third jewel of the Triple Crown and the premier race of the year in New York.

“Plaintiff is a well-known Thoroughbred trainer, whose horses have won numerous significant races,” the filing stated. “But, over the course of Plaintiff's career, his horses have been cited for drug-related violations at least 30 times. In fact, over the 12 months preceding this year's Kentucky Derby, Plaintiff has been fined four times for drug-related violations.”

Medina Spirit at Churchill Downs | Coady photo

Two of those violations were for lidocaine, one was for dextrorphan, and another, like in Medina Spirit, also for betamethasone. Three of Baffert's five most recent drug positives came in Grade I stakes—the Arkansas Derby and Kentucky Oaks in 2020, plus the 2021 Kentucky Derby. The two findings at marquee events at Churchill Downs led the gaming corporation that owns the track to bar Baffert from the entire family of Churchill-affiliated tracks for a period of two years.

The NYRA filing continued: “Although Plaintiff did not then have any horses entered in races or stabled at [NYRA tracks], it was likely, if not certain, that Plaintiff would attempt to enter Medina Spirit in the Belmont scheduled for June 5, 2021.

“Given Plaintiff's history of drug-related violations, Medina Spirit's positive test, Plaintiff's contradictory statements, Plaintiff's [then-temporary] suspension from Churchill Downs, and the fact that the Belmont was fast approaching, NYRA took the only sensible action under the circumstances—it temporarily suspended Plaintiff from entering and stabling horses at its Racetracks.”

The filing also pointed out that the May 17 letter had advised Baffert that if he wished to present to NYRA any information or arguments that might make the association reconsider its ban, he had seven business days in which to do so.

Yet according to NYRA, “Plaintiff never availed himself of this opportunity to be heard or raise any objection with NYRA. Instead, nearly a month after NYRA imposed the temporary suspension, Plaintiff commenced this action…and now moves for a preliminary injunction.”

The NYRA filing outlined three chief legal reasons against granting Baffert the court ruling he seeks to resume racing at NYRA tracks:

“First, Plaintiff fails to demonstrate that he will suffer irreparable injury in the absence of emergency relief. Rather than allege any actual or imminent injury or irreparable harm warranting a preliminary injunction, Plaintiff offers only conclusory assertions of potential harm, speculates that he may lose unidentified clients of the suspension is not lifted, and fails to submit any evidence demonstrating that the speculative loss of clients would substantially damage his business.

“Even if the Court were to consider Plaintiff's potential client loss, such an injury could be remedied through money damages, rendering preliminary injunctive relief inappropriate. Furthermore, Plaintiff's nearly month-long delay in seeking this preliminary injunction undercuts the sense of urgency needed to remedy his alleged harm.

“Second, Plaintiff fails to establish that he is likely to succeed on the merits of his claims. Contrary to Plaintiff's unsupported assertion that NYRA could not temporarily suspend Plaintiff from its Racetracks because it does not own the grounds on which they are located, settled law holds that NYRA had both the common law and regulatory right to exclude anyone, including a licensed trainer, who engages in conduct detrimental to the best interests of racing.

“Moreover, Plaintiff's assertion that NYRA violated his due process rights is incorrect. NYRA was not required to provide Plaintiff an opportunity to be heard before issuing a temporary suspension because NYRA's decision was based on probable cause that Plaintiff's actions warranted suspension and was necessary to protect the safety of the racehorses and their riders…. Plaintiff also fails to allege facts sufficient to show that he is likely to prove that NYRA's temporary suspension of Plaintiff was 'state action'—as required to implicate due process concerns.

“Third, the public interest and balance of equities weigh clearly in favor of NYRA. NYRA is obligated to protect its investment, brand and reputation, and supervise activities at its Racetracks in a manner that fosters the public's confidence in the safety and honesty of the sport.

“Plaintiff's speculative assertions that his business might suffer or that his temporary suspension could last for a significant period of time cannot override NYRA's compelling interests in upholding the integrity of horse racing…. Accordingly, Plaintiff's motion for a preliminary injunction should be denied.”

Craig Robertson, an attorney representing Baffert in this case, did not reply to an emailed request for comment on Wednesday.

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Jockey Club Gets Permission to File Brief in Baffert Affair

The Jockey Club (TJC) was granted permission to file its proposed amicus brief in trainer Bob Baffert's federal lawsuit against the New York Racing Association (NYRA), but must do so within a week.

Judge Carol Bagley Amon issued the order Wednesday in the United States District Court, Eastern District of New York.

“The request for permission to file an amicus brief [14] is GRANTED in part,” the order reads. “The Jockey Club may file its proposed amicus brief. The brief must be filed no later than June 30, 2021, or it will not be considered.”

Baffert is seeking to overturn the ban imposed upon him by NYRA on May 17 after Medina Spirit (Protonico) tested positive for Betamethasone in this year's GI Kentucky Derby.

On June 14, Baffert filed a civil complaint against NYRA, alleging that the association's ban violates his Fourteenth Amendment constitutional right to due process. He is seeking a preliminary and permanent injunction ordered against NYRA to prevent his further banishment from those tracks, claiming that if that does not happen, he will suffer immediate and irreparable harm.

In a June 22 letter to the court, Susan Phillips Read, an attorney for The Jockey Club, asked for permission to file an amicus brief. She indicated in the letter that The Jockey Club may be able to provide the court information which it may not be able to obtain elsewhere, though what that information was is unclear.

TJC, through its wholly-owned subsidiaries and Thoroughbred Safety Committee, has access to information not necessarily available to the parties,” Read wrote.

An amicus brief or curiae–literally `friend of the court'–is filed by a person or party with a strong interest in the matter who is not a party to the action.

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What Will That Extra Urine Testing In The Medina Spirit Case Actually Tell Us?

Attorneys for Medina Spirit's connections spilled a lot of ink last week to ensure their clients will have the opportunity to run extra tests on a split sample of the horse's urine. They hope to demonstrate that the betamethasone detected in two rounds of testing after the Kentucky Derby was the result of a topical ointment applied for a skin rash, not an injected treatment to relieve pain or inflammation. The eventual goal, according to a civil suit filed in Franklin Circuit Court over that extra testing, will be to argue that a topical application of betamethasone isn't prohibited by Kentucky regulations and that repercussions for trainer Bob Baffert and owner Zedan Racing should therefore be mitigated. A judge ruled on June 11 that the extra testing will go on, and it only remains for the Kentucky Horse Racing Commission and the horse's connections to agree on how much urine will be tested.

The second objective, the question of whether administration route matters, will come down to a long (and probably dry) legal argument. The first objective, the proof of where the betamethasone came from, hangs on that extra testing, which means this is a good time to ask – can extra urine testing actually prove the origin of the betamethasone in question?

Maybe, says equine drug testing expert Dr. Rick Sams. But maybe not.

There are two ways that drug testing could try to establish whether the betamethasone came from an ointment or an injectable: by looking for the other ingredients in Otomax, the topical cream Baffert eventually said was used to treat a rash on Medina Spirit's hindquarters, or by identifying the exact chemical makeup of the betamethasone in the sample.

Besides betamethasone, Otomax also contains gentamicin, an antibiotic, and clotrimazole, an anti-fungal. Post-race samples aren't tested for most antibiotics or antifungals because those drugs are not acting directly on the body of the horse — they're designed to combat bacteria or fungi. As such, most of them aren't regulated in racehorses the same way an anti-inflammatory is, so it's not surprising that these ingredients weren't reported on the initial post-race test or in the split sample.

(Procaine penicillin is the common exception to this, since procaine is a numbing agent also used in other ways, outside the combination with penicillin. Penicillin is known to cause some discomfort in horses when injected, so it's often formulated with procaine to make repeated administrations more tolerable.)

Sams worries however that it's unlikely either of those drugs would have made it into the horse's urine in a sufficient amount to be testable, because they were given as topicals. They were present in a topical application with the directive to work on a surface- level skin rash, so their purpose was to work on bacteria or fungi on the skin's surface. He suspects they weren't designed to be readily absorbed through the skin and into the bloodstream, since most of their work was to take place on the outside of the horse.

“I think the likelihood of gentamicin ever getting absorbed in sufficient quantities to show up in the urine is essentially zero,” he said.

In the case of clotrimazole, it's present in very low levels in Otomax, making it even less likely it would be absorbed.

“There are no studies I can find that demonstrate any appreciable absorption of clotrimazole after topical administration,” Sams said.

It's also not immediately clear how many accredited racing labs would be able to test for either substance, because it's not part of the usual battery of post-race tests. A civil court hearing June 11 revealed that New York's Equine Drug Testing Program housed at Morrisville State College will conduct the extra testing.

The other thing Zedan and Baffert hope the extra testing will reveal is the chemical makeup of the betamethasone detected in post-race sampling. Otomax contains betamethasone valerate, which is chemically different from betamethasone acetate and betamethasone sodium phosphate – the two versions of betamethasone used in injectable products. The words acetate, sodium phosphate, and valerate all refer to esters, which are chemical compounds derived from acids that are attached to a molecule of betamethasone.

“If one was to look for the valerate ester and find it, that would demonstrate that something other than the injectable preparation was administered to the horse,” said Sams. “But I think the chance of finding the valerate ester of betamethasone is zero, because the valerate ester has very low water solubility, and substances have to have water solubility to get excreted into the urine so I don't think it ever gets into the urine as valerate.”

It's possible that the legal team will ask the lab to look for betamethasone acetate and betamethasone sodium phosphate instead, with the idea that if they aren't found, that would demonstrate the horse wasn't given injectable betamethasone. Sams said the betamethasone acetate is, similarly to betamethasone valerate, not all that water soluble and therefore he wouldn't expect to find it in urine, even if it had been administered to the horse. The sodium phosphate ester however, is very water soluble and that may be excreted into the urine readily. Sams has done previous research on a chemically similar ester and found it was pretty easy to detect.

Racing labs aren't typically asked to determine which form of a drug like betamethasone is in a sample and Sams said he is not aware of any racing lab ever previously attempting to make this distinction.

So how helpful could this additional testing be? Its usefulness to Bob Baffert and Zedan Racing may be more about what it doesn't show than what it does. If the testing confirms betamethasone but can't determine which form is present, or finds no evidence of either injectable version, the attorneys may point out that there is no evidence to refute Baffert's version of events.

Of course, Sams and many others have stated that they don't believe Kentucky's rules differentiate between routes of administration for regulated substances like betamethasone. Whatever Baffert and Zedan hope to learn from the extra testing they've fought for, they will no doubt look to challenge that belief in court proceedings that may stretch on for months or years to come.

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