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Letter to the Editor: John Sikura

The case of Bob Baffert has been, sad but fascinating to watch. It has served to be the perfect foil for agenda-driven companies and organizations to attach a face to 'the cause.' Due process and the right to defend oneself with veracity is the foundational tenet of this country. It protects citizens from overreaching by entities such as Churchill, NYRA and others banning Baffert from running at their tracks until adjudication is reached–not dictated. The actions of Churchill Downs clearly prioritize what we already know, which is that the value proposition of the Kentucky Derby is their one commitment to racing. The serial monetizing of racetracks, and devotion to casino and historical racing revenue leave them without a credible position except as very good drivers of CDI stock value. The leading face of racing is excluded from racing at Churchill and cannot earn Derby points while the premise argument (veterinary-prescribed topical skin cream) has proven to be validated. Will the NYRA now reverse itself or cling to its ban? Admonished by a judge for sidestepping due process and a new hearing scheduled to decide the right of Baffert to race at their tracks, this new evidence is assuredly exculpatory for Baffert. What about The Jockey Club? They have taken a lead position on HISA and have committed to exposing cheats while fairly dealing with violations. They joined the NYRA suit in their brief and therefore should publicly state a position. This is a good test for them as well.

I wish to make my position clear that I am against all forms of cheating or illegal drug use. Those convicted of such should face the harshest of penalties. I also believe that jealousy and innuendo without proof are unfair and tarnish the reputation of our game and can cost people their careers. Ignoring thresholds of therapeutic drugs, inconsistent withdrawal times, human error or environmental contamination is not realistic testing. The intent should be to eliminate all illegal drugs from our game and deal with 'positives' in a manner which attaches penalties uniformly and fairly. I hope and trust that HISA will accomplish all of this and more.

In the interim, the Baffert barn is responsible for following the rules and protocols of racing in each jurisdiction he races and that is not debated by me. I do contest the piling on in advance of final proof and draconian punishment of banishment as commensurate penalty for the 'violations.' None have included illegal drugs and none have tested at a threshold to enhance performance.

I close by admitting that it was probably best if this letter was not written and I said nothing publicly. Bob Baffert has been a friend and an important part of my life and business so you can question my objectivity. I would counter by saying that those who know me know I speak candidly and without adherence to public opinion or consensus. I don't absolve him of being responsible for his barn, I only write the letter as his detractors have been vocal, organized and many. I for one wish to tilt the scales and offer my support.

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Baffert Attorneys Claim Test Proves Ointment Led To Medina Spirit’s Failed Drug Test

Attorneys for the owner and trainer of Medina Spirit, first-place finisher in the 2021 Kentucky Derby, claim tests conducted by a New York laboratory have “definitively confirmed” the horse tested positive for a corticosteroid not through an injection but because of an ointment used to treat a skin rash.

Craig Robertson, attorney for Bob Baffert, and Clark Brewster, representing owner Amr Zedan's Zedan Racing Stables, said tests conducted by Dr. George Maylin, who heads a drug testing laboratory at New York's Morrisville State College, showed the presence of betamethasone valerate, which they claim is found in Otomax ointment. Otomax, manufactured to treat ear infections in dogs, lists betamethasone as one of its ingredients. The test, Robertson and Brewster said, also confirmed the absence of betamethasone acetate, the injectable corticosteroid used to treat inflammation.

“In other words,” Robertson said in a statement, “it has now been scientifically proven that what Bob Baffert said from the beginning was true – Medina Spirit was never injected with betamethasone and the findings following the Kentucky Derby were solely the result of the horse being treated for a skin condition by way of a topical ointment – all at the direction of Medina Spirit's veterinarian.”

The Paulick Report has asked Robertson and Brewster for a full copy of Maylin's report.

Robertson said the test result “should definitively resolve the matter in Kentucky and Medina Spirit should remain the official winner of the 2021 Kentucky Derby.” Brewster had similar sentiments, stating that “Zedan is proud to have stood by Bob and is ecstatic that Medina Spirit will receive the honor of his great victory.”

The Kentucky Horse Racing Commission and board of stewards have yet to conduct a hearing on Medina Spirit's failed drug test, and until a hearing is conducted Medina Spirit will remain the Kentucky Derby winner. In the ewake of the failed drug test, Baffert was ruled off all tracks owned by Churchill Downs Inc. through the conclusion of the 2023 spring-summer meet at the company's flagship track in Louisville, Ky. Churchill Downs also said horses trained by Baffert are not eligible for qualifying points for the Kentucky Derby.

A spokesperson for the commission could not be reached for comment on Maylin's testing, which attorneys for Baffert and Zedan sought through a court order.

The rules of Kentucky racing do not appear to differentiate between administration of betamethasone or other drugs through injection or other means. In section 1 in the regulations relating to medication, testing procedures and prohibited practices, the definition for “administer” states: “to apply to or cause the introduction of a substance into the body of a horse.”

The full statements from Robertson and Brewster follow:

Craig Robertson: The testing of the split urine sample of MEDINA SPIRIT has now been completed by Dr. George Maylin, Director of the New York Drug Testing & Research Program. By Order of the Franklin Circuit Court in Kentucky, this urine was tested “to determine if the alleged topical administration of OTOMAX could have resulted in the finding of betamethasone” in MEDINA SPIRIT following the 2021 Kentucky Derby. Those results have now definitively confirmed that the betamethasone present in MEDINA SPIRIT's system did indeed come from the topical ointment OTOMAX and not an injection. In other words, it has now been scientifically proven that what Bob Baffert said from the beginning was true – MEDINA SPIRIT was never injected with betamethasone and the findings following the Kentucky Derby were solely the result of the horse being treated for a skin condition by way of a topical ointment – all at the direction of MEDINA SPIRIT's veterinarian.

The betamethasone in an injection is betamethasone acetate. The betamethasone in the topical ointment is betamethasone valerate. Only betamethasone acetate is addressed and regulated in the rules of racing in Kentucky. Thus, the presence of betamethasone valerate in MEDINA SPIRIT, which resulted from a topical ointment, is not a rules violation. Dr. Maylin's testing not only confirmed the presence of betamethasone valerate, but also the absence of betamethasone acetate. This should definitively resolve the matter in Kentucky and MEDINA SPIRIT should remain the official winner of the 2021 Kentucky Derby.

Since May, Mr. Baffert has been the subject of an unfair rush to judgment. We asked all along that everyone wait until the facts and science came to light. Now that it has been scientifically proven that Mr. Baffert was truthful, did not break any rules of racing, and MEDINA SPIRIT's victory was due solely to the heart and ability of the horse and nothing else, it is time for all members of racing to come together for the good of the sport. Mr. Baffert has been a tremendous ambassador for the sport throughout his 46 year Hall of Fame career and he has every intention of continuing to do so.

Clark Brewster: As Legal counsel for, and on behalf of, Abr Zedan and Zedan Racing Stable, owner of Medina Spirit, winner of the 147th Kentucky Derby, it is extremely gratifying to learn that the New York Racing Laboratory through its Director Dr George Marlin has scientifically confirmed that no Betamethazone Acetate was found in the post race urine specimen of Medina Spirit. Dr Maylin reported that components of an ointment used to treat a skin lesion was confirmed through metabolite confirmation and that no Acetate that is part of the injectable Betamethazone was present. The Kentucky Racing Commission has steadfastly enacted rules relating to corticosteroid joint injection and have drawn a bright line rule that no injections are permitted within 14 days of a race. Now there is zero doubt that the 14 day rule some thought might have been violated by the earlier less specific testing is revealed as premature judgment. That groundless accusation is without scientific merit.
Zedan is proud to have stood by Bob and is ecstatic that Medina Spirit will receive the honor of his great victory.

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Medina Spirit Team Claims Proof Derby Drug Overage Came from Ointment

The legal teams for the trainer and owner of GI Kentucky Derby winner Medina Spirit (Protonico) jointly issued statements after 6:00 p.m. Friday stating that long-awaited split-sample testing has finally been completed on the colt's urine that “definitively confirmed” and has “scientifically proven” that the type of betamethasone that showed up in his post-race positive test is the type that comes from a topical ointment and not via an intra-articular injection.

The distinction is important to trainer Bob Baffert and owner Zedan Racing Stables (Amr Zedan) because they believe the proper adjudication of the betamethasone overage hinges on how it was administered to Medina Spirit.

In the wake of the positive findings, they claimed that Medina Spirit was treated with the betamethasone-containing ointment Otomax as late as Apr. 30 (the day before his Derby win) to help deal with a skin lesion. They have denied that the colt's joints were ever treated with the injectable form of that drug.

“The betamethasone in an injection is betamethasone acetate. The betamethasone in the topical ointment is betamethasone valerate. Only betamethasone acetate is addressed and regulated in the rules of racing in Kentucky. Thus, the presence of betamethasone valerate in Medina Spirit, which resulted from a topical ointment, is not a rules violation,” W. Craig Robertson, Baffert's lead attorney, stated in a press release.

Robertson continued, citing findings from the New York Equine Drug Testing and Research Laboratory's director, George Maylin:

“Dr. Maylin's testing not only confirmed the presence of betamethasone valerate, but also the absence of betamethasone acetate. This should definitively resolve the matter in Kentucky and Medina Spirit should remain the official winner of the 2021 Kentucky Derby.”

Early Friday evening, TDN asked Marc Guilfoil, the executive director of the Kentucky Horse Racing Commission (KHRC), if his agency could confirm the findings that were announced by Medina Spirit's connections.

“I haven't seen it, so we can't confirm anything,” Guilfoil said via phone.

When asked if a finding of betamethasone from an ointment and not an injection would change anything related to how Medina Spirit's overage of betamethasone would be handled, Guilfoil said, “We cannot comment on an ongoing investigation.”

Clark Brewster, an attorney representing Zedan, stated in a press release that the new finding should change the trajectory of how the case gets settled.

“The KHRC has steadfastly enacted rules relating to corticosteroid joint injection and have drawn a bright-line rule that no injections are permitted within 14 days of a race,” Brewster stated. “Now there is zero doubt that the 14-day rule some thought might have been violated by the earlier less-specific testing is revealed as premature judgment. That groundless accusation is without scientific merit.”

TDN asked Guilfoil if Robertson's and Brewster's interpretations of the KHRC rule were correct, and whether or not the rules relating to the Class C violation for betamethasone in Kentucky made any distinction pertaining to how the substance got inside a horse.

“I can't comment on it. I don't have a rule book in front of me, and anyway it would be a question for our lawyer. We're in litigation, and we can't comment on ongoing litigation,” Guilfoil said.

Guilfoil was referring to the June 7 civil complaint Medina Spirit's connections filed against the KHRC that forced the agency to turn over the colt's post-race urine sample to the New York lab for independent testing.

Robertson's statement read, in part: “In other words, it has now been scientifically proven that what Bob Baffert said from the beginning was true–Medina Spirit was never injected with betamethasone and the findings following the Kentucky Derby were solely the result of the horse being treated for a skin condition by way of a topical ointment–all at the direction of Medina Spirit's veterinarian.”

Eight days after the Derby, on Sunday, May 9, Baffert first disclosed the betamethasone positive at a press conference outside the barn where Medina Spirit was stabled at Churchill Downs. In doing so, he was getting out in front of the official announcement that would come later by the KHRC.

But Baffert didn't actually bring up the possibility that an ointment had triggered the positive until two days later, on Tuesday, May 11.

At first, on May 9, Baffert chose to implicate circumstances as the hazy, underlying culprit in the case (“I don't know what is going on with the regulators…. It's a complete injustice…. It's getting worse, and this is something that has to be addressed by the industry…. [This is] the biggest gut punch in racing for something that I didn't do”).

But as TDN's Bill Finley reported when Baffert's legal team put out a press release two days later implicating the ointment, “Baffert reversed course after declaring emphatically earlier in the week that the horse had never been treated with betamethasone. The trainer now says that he was not aware until [May 10] that the ointment in question, called Otomax, contained betamethasone. Betamethasone is clearly listed as an ingredient in Otomax on the box containing the drug.”

When asked at that time by TDN how a veterinarian could have given the horse Otomax so close to the most important horse race in America without knowing it could result in a drug positive, Robertson replied, “That's a question you're going to have to ask the veterinarian. I don't want to be quoted as throwing the veterinarian under the bus either. Listen: I don't know the answer to that question. I just don't.”

Although Medina Spirit's veterinarian was once again alluded to in the Dec. 3 statements, neither Baffert nor Zedan has publicly named that doctor, nor have they addressed why the Otomax was administered so close to the Derby in the first place.

The fallout from the betamethasone overage–which hasn't even resulted in a KHRC hearing yet, let alone any official ruling–has been costly to Baffert (in terms of being banned by some tracks) and to the sport (in terms yet another crisis that delivers an outsized hit to the game's public image).

The gaming corporation that owns Churchill Downs has barred Baffert from competing at its portfolio of tracks for two years, and none of his A-list 2-year-olds, including likely champion juvenile Corniche (Quality Road), are being allowed to accrue 2022 Derby qualifying points to get into the race Baffert has won seven times.

Baffert has also been barred from competing at the New York Racing Association (NYRA)'s tracks, but in July he secured a preliminary injunction in the courts that still allows him to race there until that lawsuit is resolved in full.

Although his ruling-off by NYRA came eight days after Medina Spirit's betamethasone positive was first made public, NYRA has claimed that its banishment of him has more to do with his pattern of equine drug positives: In the 12 months prior to Medina Spirit's finding from the Derby, four other Baffert trainees also tested positive for medication overages, two of them in Grade I stakes.

Baffert's attorneys have claimed throughout the ordeal that he's a victim in this case.

“Since May, Mr. Baffert has been the subject of an unfair rush to judgment,” Robertson stated in Friday's release. “We asked all along that everyone wait until the facts and science came to light. Now that it has been scientifically proven that Mr. Baffert was truthful, did not break any rules of racing, and Medina Spirit's victory was due solely to the heart and ability of the horse and nothing else, it is time for all members of racing to come together for the good of the sport. Mr. Baffert has been a tremendous ambassador for the sport throughout his 46-year Hall-of-Fame career and he has every intention of continuing to do so.”

Brewster stated that “Zedan is proud to have stood by Bob and is ecstatic that Medina Spirit will receive the honor of his great victory.”

The post Medina Spirit Team Claims Proof Derby Drug Overage Came from Ointment appeared first on TDN | Thoroughbred Daily News | Horse Racing News, Results and Video | Thoroughbred Breeding and Auctions.

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Baffert Amends Lawsuit to Attack NYRA’s Alleged ‘Sham’ Hearing

Bob Baffert filed an amended complaint on Friday in his ongoing constitutional rights court battle against the New York Racing Association (NYRA). The new sections of the revised lawsuit contain no new bombshell allegations, and largely mirror points previously voiced by his legal team regarding what they have described as a “sham” hearing process initiated by NYRA to determine if Baffert will be excluded from New York's premier tracks.

“The Sept. 10, 2021, 'Statement of Charges' which NYRA has asserted against Baffert are unquestionably vague and entirely subjective,” the amended complaint states. “The 'Statement of Charges' alleges that Baffert has engaged in: 1) 'conduct detrimental to the best interest of racing'; 2) 'conduct detrimental to the health and safety of horses and jockeys'; and 3) 'conduct detrimental to NYRA business operations.'”

The Nov. 19 revision filed in United States District Court (Eastern District of New York) goes on to state that “there are no articulable standards for establishing whether Baffert's conduct in other jurisdictions was detrimental.”

Thus, the amended complaint further states, “Under this vague framework, NYRA seeks to ignore [legal matters that have already been decided] in other jurisdictions and impose its own arbitrary punishment.”

The Hall of Fame trainer's initial version of this lawsuit dates back to June 14. It alleged NYRA violated his constitutional right to due process by trying to bar him over his history of equine medication violations.

NYRA had banished the seven-time GI Kentucky Derby-winning trainer back on May 17 after the Baffert-trained Medina Spirit (Protonico) tested positive for a betamethasone overage while winning the May 1 Run for the Roses.

That case has still not resulted in any Kentucky ruling against Baffert. In a separate testing endeavor, Baffert is trying to prove that Medina Spirit's betamethasone finding was the result of the application of an anti-fungal ointment and not an injection of that drug. The Blood-Horse reported Thursday that long-delayed testing of a urine specimen won't even begin until next week.

But NYRA's desire to rule off Baffert goes beyond Medina Spirit's still-in-limbo Derby penalization status. In the 12 months prior to Medina Spirit's positive, four other Baffert trainees also tested positive for medication overages, two of them in Grade I stakes.

On July 14 the court granted Baffert a preliminary injunction that allows him to race at New York's premier tracks until his lawsuit gets adjudicated in full.

But judge Carol Bagley Amon also wrote in that ruling that “Baffert should have been given notice of all of the reasons that NYRA intended to suspend him….[The] benefits of providing notice and a pre-suspension hearing would likely have been substantial.”

So in the wake of that decision, NYRA drafted a new set of procedures for holding hearings and issuing determinations designed to suspend licensees who engage in injurious conduct.

After those rules were made public, NYRA wrote a Sept. 10 letter summoning Baffert to appear at an exclusion hearing.

On Sept. 22, Baffert filed a motion asking the judge to hold NYRA in civil contempt for trying to schedule such a hearing and to stay the hearing itself. Both requests were denied.

Craig Robertson, the lead attorney on Baffert's legal team, then wrote an Oct. 21 letter to the judge asking to be allowed to amend the initial complaint to address the allegedly unfair hearing process. His argument, in part, stated that “The rules and procedures which NYRA has concocted for Baffert were all created after the fact.”

On Nov. 9, in an effort to move along the already cumbersome litigation process, Amon said she would allow Baffert to amend his complaint, because if she didn't, it is likely that he would simply file a new, separate lawsuit to get his allegations about the exclusion hearing ruled upon in court.

“NYRA purports to act pursuant to a new 'rule' that supposedly gives it the right to suspend Baffert for conduct occurring 'in any jurisdiction,'” the amended complaint now states.

“However, prior to this case, NYRA never had such a rule in place and never attempted to punish a trainer for conduct that occurred outside of the state of New York,” the complaint continues. “It created this rule (and the associated procedures) after the alleged misconduct occurred. It is a fundamental due process violation for NYRA to enact rules and procedures and attempt to apply them ex post facto.”

The new allegations further state that “There are numerous other trainers who, unlike Baffert, have actually run afoul of New York's rules of racing, but who NYRA continues to allow to race. NYRA's duplicitous actions make it clear that it has simply chosen to target Baffert for disparate treatment.”

Even as Baffert's legal team is fighting the exclusion hearing, it still must prepare for that process in the event that the court does not intervene to cancel it. The parties have mutually agreed to a Jan. 24 start date.

NYRA has until Dec. 3 to file its response to the amended complaint. When NYRA previously addressed the issue of the hearing in court documents, it termed Baffert's characterization of the process as “misguided,” noting that “Plaintiff s argument that he had no notice of the conduct prohibited by NYRA likewise fails given that common law has long recognized the standards and interests NYRA intends to uphold.”

NYRA had also previously pointed out to the judge that it was “providing Plaintiff exactly what he argued he was entitled to in support of his motion for a preliminary injunction-notice and an opportunity to be heard.”

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