Baffert Stay Request Denied by KHRC

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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Baffert Sues CDI, Carstanjen & Rankin Over Suspension

Trainer Bob Baffert has filed a lawsuit in U.S. District Court for the Western District of Kentucky against Churchill Downs Inc. (CDI), CDI CEO Bill Carstanjen and CDI Board Chair Alex Rankin. Baffert is seeking a preliminary or permanent injunction that will enjoin Churchill from barring him. At present, Baffert cannot compete in the 2022 or 2023 runnings of the GI Kentucky Derby or any other races at Churchill or Churchill-owned tracks.

He  is also fighting a separate action from the Kentucky Horse Racing Commission, which suspended him for 90 days after Medina Spirit (Protonico) tested positive for betamethasone in last year's Derby.

“The notion that Churchill Downs, which is not even tasked with regulating horse racing in Kentucky, could unilaterally ban a trainer by an edict coupled in a press release without having the facts or any semblance of due process should arouse outrage in any fair-minded person,” said Baffert's attorney Clark Brewster.

Shortly after the lawsuit was filed, Churchill issued a scathing statement, declaring that its fight against Baffert was about protecting the integrity of racing.

“The lawsuit filed by Bob Baffert is disappointing, but certainly not surprising,” the statement read. “His claims are meritless and consistent with his pattern of failed drug tests, denials, excuses and attempts to blame others and identify loopholes in order to avoid taking responsibility for his actions. These actions have harmed the reputations of the Kentucky Derby, Churchill Downs and the entire Thoroughbred racing industry. Churchill Downs will fight this baseless lawsuit and defend our company's rights. What's at stake here is the integrity of our races, the safety of horses and the trust of the millions of fans and bettors who join us every year on the first Saturday in May.”

The Baffert side did not mince words, either. The lawsuit charges that “CDI has, with malicious intent, caused significant damage to Baffert's ability to conduct his customary business on a national scale. From context, it is apparent that CDI's targeted sanctions have the singular aim of destroying Baffert's career.”

The crux of Baffert's case against Churchill is twofold, that the ban deprives him of his right to due process and that only the state racing commission is permitted to issue a ban against trainers.

“Despite the prevalence of actual reckless and dangerous conduct by others trainers and owners (which have sometimes culminated in Racing Commission suspensions), CDI has arbitrarily and capriciously singled out Baffert for this baseless sanction in violation of Baffert's procedural and substantive due process rights under the Fourteenth Amendment to the United States Constitution,” the suit reads.

A federal court ruled that the New York Racing Association violated Baffert's due process rights when issuing a suspension of its own against the trainer. That forced NYRA to hold a hearing into the Baffert matter, the results of which have yet to be determined. However, NYRA is a quasi-state organization and the courts generally treat such an entity differently than they do a privately held company like Churchill. In most cases, private tracks can ban individuals and do so without due process.

On the issue of whether or not Churchill can ban an individual, Baffert's legal team is arguing that such a suspension can only be handed down by a racing commission.

“Baffert expressly agreed to cooperate with the Racing Commission's regulatory process when he entered horses at Churchill Downs and to submit to any penalties imposed after a final order issued by that body. Baffert's culpability, if

any, will be determined in that forum,” the suit reads.

The lawsuit also seeks to force Churchill to award points for the Kentucky Oaks and Derby in the event a Baffert-horse places in a prep race. Churchill has declared that all Baffert-trainees are not eligible to earn any points in the preps, still another factor that might keep Baffert's horses out of those races.

But even if Baffert can win this round in court that does not mean he will be eligible to compete in the Derby. In order to do so, he will also have to find a way through the courts to get a stay of the Kentucky Horse Racing Commission's ban, which is set to begin Mar. 8.

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Medina Spirit Cruises in WAYI Awesome Again

For 110 seconds on an unseasonably hot Saturday afternoon in Southern California, all was right in the world of Zedan Racing Stables' Medina Spirit (Protonico).

Having given last Saturday's GI Pennsylvania Derby a miss, the blue-collar colt was rerouted to Saturday's GI Awesome Again S. and a first try against some accomplished older horses. With a berth in the GI Breeders' Cup Classic on the line, the Florida-bred once again displayed the tenacity and raw ability that carried him past the post first in the GI Kentucky Derby, leading every step of the way to cement his status as one of the top choices when they enter the gate around 5:40 Pacific time on the afternoon of Nov. 6 at Del Mar.

As low as 3-5 in the wagering, Medina Spirit eased out to be off at 13-10 and his already-strong chances were amplified when the speedy Tizamagician (Tiznow)–a latest second to Tripoli (Kitten's Joy) in the GI TVG Pacific Classic–failed to break alertly from the inside gate, allowing John Velazquez an uncontested time of things atop Medina Spirit after edging to the front with a circuit of the Santa Anita main track to traverse. He had to do some work through the opening couple of furlongs in :23.34, but Medina Spirit came back nicely to Velazquez and went the next internal quarter-mile in a more manageable :24.38, with Tizamagician having gained ground to be second.

He was able to get some more air into his lungs with the next two furlongs timed in :24.02 and Medina Spirit traveled ears-pricked into the final three-eighths of a mile. Tizamagician and Tripoli, who was three and four wide the trip, tried to make a race of it in upper stretch, but Medina Spirit had plenty left and kicked home a decisive winner. Iowa Derby winner Stilleto Boy (Shackleford), third to Medina Spirit last time in the Aug. 29 Shared Belief S., ran a blinder to be second at 54-1, two lengths better than Express Train (Union Rags) in third.

“I'm happy for Zedan and what we have had to deal with,” said trainer Bob Baffert, winning the Awesome Again/Goodwood for a record-extending seventh time. “We stayed focused on the horses. The fans came out to see this horse and they are rooting for him. I could tell by the crowd noise. They are all pulling for him.  It's an emotional win for us. Johnny V. can do whatever with the horse. He can wait, stalk, whatever. This horse keeps getting better and better.”

Medina Spirit was the refuse-to-lose winner of the GIII Robert B. Lewis S. Jan. 30, an effort that was sandwiched between runner-up efforts to 'TDN Rising Star' Life Is Good (Into Mischief) in the GIII Sham S. and GII San Felipe S. before disappointing fractionally when second to Rock Your World (Candy Ride {Arg}) in the GI Santa Anita Derby Apr. 3. Those who kept the faith got odds of 12-1 for the GI Kentucky Derby, where his fighting qualities were on display yet again, clawing his way to a half-length defeat of 'Rising Star' Mandaloun (Hot Rod Charlie), with future Pennsylvania Derby hero Hot Rod Charlie (Oxbow) third and champion 'Rising Star' Essential Quality (Tapit) fourth. Allowed to participate conditionally in the May 15 GI Preakness S. in the immediate aftermath of the betamethasone positive that remains a cloud over the Derby five months later, Medina Spirit was no better than third behind Rombauer (Twirling Candy). After skipping the summer's major 3-year-old events, he was not among the original nominees to the Shared Belief, but was supplemented at entry time and reversed form with Rock Your World in that Aug. 29 event.

Pedigree Notes:

Medina Spirit is one of seven winners from two crops to race by the Giant's Causeway stallion Protonico, a four-time graded winner and twice placed at Grade I level, each time behind the Baffert-trained Hoppertunity (Any Given Saturday). He is the only foal to date for Mongolian Changa, who was covered this year by Giant's Causeway's son Not This Time. Medina Spirit's third dam Holy Niner was a half-sister to GISW High Yield (Storm Cat).

Saturday, Santa Anita
AWESOME AGAIN S.-GI, $301,500, Santa Anita, 10-2, 3yo/up,
1 1/8m, 1:49.67, ft.
1–MEDINA SPIRIT, 122, c, 3, by Protonico
                1st Dam: Mongolian Changa, by Brilliant Speed
                2nd Dam: Bridled, by Unbridled
                3rd Dam: Holy Niner, by Holy Bull
($1,000 Ylg '19 OBSWIN; $35,000 2yo '20 OBSOPN). O-Zedan
Racing Stables, Inc.; B-Gail Rice (FL); T-Bob Baffert; J-John R.
Velazquez. $180,000. Lifetime Record: 9-5-3-1, $2,525,200.
Click for the eNicks report & 5-cross pedigree. Werk Nick
Rating: B.
2–Stilleto Boy, 118, g, 3, Shackleford–Rosie's Ransom, by
Marquetry. ($420,000 3yo '21 FTKHRA). O-Steve Moger;
B-John Kerber & Iveta Kerber (KY); T-Ed Moger, Jr. $60,000.
3–Express Train, 124, c, 4, Union Rags–I'm a Flake, by
Mineshaft. ($500,000 Ylg '18 KEESEP). O-C R K Stable LLC;
B-Dixiana Farms LLC (KY); T-John A. Shirreffs. $36,000.\Margins: 5, 2, 1 1/4. Odds: 1.30, 54.80, 6.70.
Also Ran: Tripoli, Tizamagician, Idol, Azul Coast, Midcourt.
Click for the Equibase.com chart, the TJCIS.com PPs or the free Equineline.com catalogue-style pedigree. VIDEO, sponsored by TVG.

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The Show Continues in Preakness

BALTIMORE, MD–Immediately after the May 1 GI Kentucky Derby, it appeared that the GI Preakness S. two weeks hence would be a routine affair. Trainer Bob Baffert would be heading to Pimlico with a record seventh Derby victory under his belt and he would be in the enviable position of trying to collect his eighth win in the second jewel of the Triple Crown. And then the unthinkable happened. The Derby winner, Medina Spirit (Protonico), tested positive for Betamethasone, a substance banned on race day. That single event sparked a week of drama, statements, interviews and a ton of speculation. Initially, the public was told the horse did not receive the drug. Then, it was discovered the colt, who had been wrestling with a skin condition, required an anti-fungal. Enter Otomax, said anti-fungal which contains, you guessed it, Betamethasone. As the week progressed, the speculation continued, lawyers racked up billable hours and later in the week, the local officials gave the green light for the Baffert horses to race after early testing came back negative for any prohibited substances. While many must have given a sigh of relief, the next hurdle remains, can Medina Spirit follow up with a win Saturday? Will a victory silence his detractors or will it simply give the media more fodder for the ensuing three weeks to the June 5 GI Belmont S.? And while the morning line favorite appears to be, at least on paper, the one to beat, nine rivals will try to stand in his way.

Team Spirit
Which ever way you cut the cake, Zedan Racing's Medina Spirit and stablemate TDN Rising Star Concert Tour (Street Sense) enter Saturday's Classic with the deepest credentials. Medina Spirit took his debut at Los Alamitos last December before finishing second in the Jan. 2 GIII Sham S. to another Baffert monster, TDN Rising Star Life Is Good (Into Mischief). That duo met again in the Mar. 6 GII San Felipe S. and once again, Medina Spirit had to settle for second–beaten eight lengths–while the early Derby favorite was forced to the sidelines after suffering a leg injury in training later in the month. Medina Spirit forged on the Apr. 3 GI Santa Anita Derby, and finished runner-up behind Rock Your World (Candy Ride {Arg}). Sent off no better than 12-1 for the Derby, Medina Spirit went to the front and never looked back en route to a half-length victory over 26-1 chance Mandaloun (Into Mischief).

Taking a difference approach early in his 3-year-old season, Gary and Mary West's Concert Tour earned his Rising Star status with an emphatic score going six panels at Santa Anita before making it two straight with a victory in the seven-furlong GII San Vincente S. Feb. 6. Back on top in the Mar. 13 GII Rebel S. over 8 1/2 furlongs, he finished third in the Apr. 10 GI Arkansas Derby.

Medina Spirit, accompanied by a returning John Velazquez, exits the three hole, while Concert Tour breaks from the 10. Mike Smith gets the call.

“[Concert Tour] is a speed horse, so he will get out of there and get a position and be on the outside somewhere,” said Baffert assistant Jimmy Barnes. “I think we're fine with both our positions. They are both front-running horses, so they will probably will be up there in the clear, hopefully. He's one that is placed forwardly in the racing. Being on the outside should be fine.”

Chad Brown offers up two in this year's Preakness renewal, Crowded Trade and Risk Taking (Medaglia d'Oro). The former won at first asking at the Big A before coming up a nose short in the Mar. 6 GIII Gotham S. Mostly recently, the chestnut came from off the pace to finish third behind a pair of longshots in the Apr. 3 Wood Memorial S. Risk Taking came home a winner in two consecutive starts, including the Feb. 6 GIII Withers S. before offering little when seventh as the 2-1 choice on the Wood. Javier Castellano climbs aboard Crowded Trade for the first time, while Jose Ortiz joins Risk Taking.

“Crowded Trade ran a really good race in only his third start,” Brown said. “He did hang a little bit in the lane, but he made up a lot of ground after breaking bad. Risk Taking was quite a disappointment that day. He was coming into the race in excellent form and his numbers were heading the right way. He just didn't fire.”

According to Brown, Risk Taking took a lot of kickback in the Wood, causing the colt to have one eye closed the following day.

“Clearly, the kickback impacted him to some degree,” Brown said. “Whether that fully explains why he just quit in that race, I will never be certain of it. I am just going to draw a line through that race. I just hope he can get back to his race in the Withers, which would put him in contention here.”

Midnight Bourbon (Tiznow), winner of the Jan. 16 GIII Lecomte S., followed up with a third behind Mandaloun in the GII Risen S. before finishing second in the GII Louisiana Derby Mar. 20. Typically on or near the engine in his races, the imposing bay broke slowly after the ground gave away under him at the start of the Kentucky Derby, leaving him uncharacteristically far back in the early going. He rallied to finish a respectable sixth.

“We're expecting a very good run from him,” said trainer Steve Asmussen, who previously won the Preakness with Curlin in 2007 and Rachel Alexandra in 2009. “I thought he was in great physical shape going into the Derby..everything was going extremely well. Missing the break did not put him in the position necessary for him to have success. From where he was, he ran reasonably well but not good enough. Here we are with a lot of horse going into the Preakness and expecting a better outcome.”

Midnight Bourbon exits Post 5 with Irad Ortiz Jr. in the irons for the first time.

GII Kentucky Jockey Club winner Keepmeinmind (Laoban) has failed to hit the board in a trio of starts this term, including a seventh in the Kentucky Derby, but his trainer Robertino Diodoro thinks the late-closing colt can turn things around Saturday.

“The only thing is, the race is run on dirt and not paper,” he said. “You know how that goes sometimes. But on paper, I think there's definitely enough pace and the smaller field helps. I think we drew well [Post 2], and will stay on the rail as long as we can..You got to worry about your own horse, and we're not going to change our running style. We tried that once a couple of starts ago, because of the lack of speed and it didn't turn out [fifth in the GII Blue Grass S. Apr. 3]. We're going to go back to our normal way of just worrying about our horse and hoping he's doing well–and definitely don't take him out of his element.”

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