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Maryland Commission Moves To Remove Testing Thresholds For Corticosteroids

The Maryland Racing Commission, upon the recommendation of its Equine Safety, Health and Welfare Advisory Committee, has approved a motion to modify a regulation on five corticosteroids to eliminate testing threshold levels and employ level of detection for the substances.

The MRC took the action at its Sept. 23 meeting at Laurel Park. The change will be filed with emergency status and there will be public comment period. Given the regulatory process involved in rule-making, it is anticipated the update regulation will be implemented Nov. 1.

The five corticosteroids are dexamethasone, prednisolone, betamethasone, isoflupredone and triamcinolone. The current 14-day stand-down period for intra-articular injections will remain in place under 2019 model rules approved by the Association of Racing Commissioners International and Racing Medication and Testing Consortium.

The Equine Health, Safety and Welfare Advisory Committee discussed the proposal at a Sept. 8 meeting as a result of several dexamethasone positives and reports the corticosteroid was being regularly administered by some veterinarians at 48 hours before a race at a lower dose rather than the RMTC-recommended 72-hour withdrawal time at the regular dose.

The committee also recommended that Maryland regulators, in an effort to educate vets and trainers, provide information on how long corticosteroids can linger in a horse's system; advise against deviation from recommended administration times; and to point out potential risks to the racehorse.

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View From The Eighth Pole: Will Breeders’ Cup Officials Act To Protect Their Brand?

On June 2, Churchill Downs Inc. suspended trainer Bob Baffert from running horses at any of its racetracks, including its flagship facility in Louisville, Ky., for two years, meaning the sport's most recognizable face and name will not be eligible to add to his record number of Kentucky Derby victories until 2024, at the earliest.

The New York Racing Association is similarly taking steps to ban Baffert, scheduling a Sept. 27 hearing where the Hall of Fame trainer and his attorneys will have an opportunity to respond to the statement of charges against him.

The actions by these two major racing associations – each exercising their private property rights – were triggered by the failed drug test of Medina Spirit, who was found to have impermissible levels of betamethasone in his system after crossing the line first in the 147^th running of the Kentucky Derby on May 1. The win was Baffert's seventh in the Derby, giving him one more – at least for now – than Ben Jones, whose runners won the roses six times from 1938-'52.

But there is a very good chance Medina Spirit will be disqualified from his victory and placed last whenever the Kentucky Horse Racing Commission gets around to conducting a hearing on the matter. If Medina Spirit has the Derby title taken away, you can bet this case will work its way through civil courts over the next several years.

A Kentucky Derby drug disqualification would be an embarrassment to the sport and to the brand that Churchill Downs Inc. cherishes so much – and profits from greatly. Medina Spirit's failed test came less than eight months after Gamine tested positive for the same corticosteroid after finishing third as the odds-on favorite in the Kentucky Oaks – the second most important race held annually at Churchill Downs. She was disqualified and Baffert was fined $1,500 for the medication violation.

Baffert blamed withdrawal guidelines for Gamine's failed drug test. In the case of Medina Spirit, he said something called “cancel culture” led to the suspension by Churchill Downs officials. Baffert took his bizarre blame game on a media tour for several days where he denied ever using betamethasone on a horse (except, presumably, for Gamine) and complained that “we live in a different world now. This, this America is different.”

And then, one week later, it was … oops, never mind. Baffert's team did treat Medina Spirit with betamethasone, he admitted in a written statement, but it was in an ointment called Otomax designed for ear infections in dogs the trainer said was used to treat a skin rash Medina Spirit developed a month before the Kentucky Derby. This was “good” betamethasone, he and his attorneys argued, not the injectable form of the drug that was given to Gamine.

And then, wisely, Baffert left the talking up to his attorneys.

The damage was already done. The trainer had become a sad punchline on late night TV and even on the ESPY award show on ESPN. The sport and its marquee event suffered collateral damage.

Churchill Downs tried to restore some sense of integrity with its temporary suspension of Baffert on May 9 and the more definitive two-year suspension handed him on June 2 after the split sample also came back positive for betamethasone.

“Reckless practices and substance violations that jeopardize the safety of our equine and human athletes or compromise the integrity of our sport are not acceptable and as a company we must take measures to demonstrate that they will not be tolerated,” Churchill Downs Inc. CEO Bill Carstanjen said about Baffert's pattern of medication violations.

But like everything else in racing, nothing is uniform and the Churchill Downs ban did not extend outside of the boundaries of its properties. Baffert ran Medina Spirit back in the Preakness Stakes on May 15, and he was welcome to return to his home base in Southern California and race at Santa Anita and Del Mar as if nothing had happened.

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Baffert's attorneys won the first round in a court battle against the New York Racing Association, reinstating his right to race at NYRA tracks at least until he is given a hearing. That comes in less than two weeks. A hearing officer will listen to the testimony, weigh the evidence and make a decision on the matter. But that, too, will only affect Baffert's right to race in New York.

NYRA's statement of charges against Baffert cites three additional positive drug tests the trainer accumulated over a 365-day period: lidocaine positives for Charlatan in a division of the Arkansas Derby and Gamine (yes, her again) in an Oaklawn Park allowance race, both on May 2, 2020; and a dextrorphan positive in Merneith after a second-place finish in an allowance race at Del Mar July 25, 2020.

Of course, Baffert had excuses for those three failed drug tests. Gamine and Charlatan tested positive, the trainer said, because his assistant trainer was wearing a pain patch on his lower back that contained lidocaine and it must have somehow contaminated the horses. Merneith tested positive, he said, because a groom who had been taking cough syrup urinated in the filly's stall.

Members of the Arkansas Racing Commission bought the pain patch pitch, overruling a stewards ruling to disqualify both Charlatan and Gamine from their Oaklawn victories. And the CHRB stewards put on their kid gloves before fining him $2,500 for Merneith's failed drug test.

After four failed drug tests in just over four months, Baffert pledged to “get better,” and said he was hiring Dr. Michael Hore of the Hagyard Equine Medical Institute in Kentucky to “add an additional layer of protection to ensure the well-being of horses in my care and rule compliance. … I am increasing the training and awareness of all my employees when it comes to proper protocols. … I am personally increasing my oversight and commitment to running a tight ship and being careful that protective measures are in place.

“I want to raise the bar and set the standard for equine safety and rule compliance going forward,” Baffert said.

That was last Nov. 4, Breeders' Cup week at Keeneland.

It all sounded fine, except Hore was never hired to monitor the Baffert operation. And apparently, neither his vet, his staff or Baffert himself read the Otomax packaging or label to see that one of the ointment's three ingredients was betamethasone.

Last week, Churchill Downs dropped another hammer on Baffert, saying that horses in the care of a trainer suspended by Churchill Downs (meaning Baffert) could not earn official qualifying points on the Road to the 2022 Kentucky Derby. That move is designed to put pressure on owners who currently have their horses with Baffert to move them to another trainer before the points races begin in earnest.

The fact that Baffert is ineligible to run horses in the 2022 or 2023 Kentucky Oaks or Derby does not seem to have phased some of his owners, including SF Bloodstock and Starlight Racing, which spent nearly $3 million on five yearlings before the first two sessions of the Keeneland September Yearling Sale had ended, reportedly with the intention of sending them to Baffert to train.

One group that has not been heard from is the Breeders' Cup, whose two-day world championships take place this year at Del Mar on Nov. 5-6. As of now, Baffert will be eligible to race, and it seems unlikely that will change, given the fact that his five failed drug tests do not constitute a violation of the Breeders' Cup Convicted Trainers Rule. That rule disqualifies a trainer from participating if he or she has been sanctioned in the previous 12 months for a Class 1 violation carrying Category A or B penalties or a Class 2 violation carrying a Category A penalty. Those classifications (with Class 1 considered the most serious) are determined by the Association of Racing Commissioners International. None of Baffert's violations are Class 1 or Class 2, including the pending case involving Medina Spirit.

The Breeders' Cup board presumably could opt to take action against Baffert by further refining the Convicted Trainers Rule. The board consists of 13 men and one woman – all but two of whom have a direct or indirect financial relationship with the trainer, starting with chairman Fred W. Hertrich III, who has had ownership interests in several Baffert runners, including the disqualified and then reinstated Arkansas Derby winner Charlatan. Eleven others either own horses in Baffert's stable or stand stallions that he once trained and several hope to catch his eye with their yearlings sold at public auction.

As fiduciaries working on behalf of the breeders and owners who help fund the program through foal, racehorse and stallion nominations and entry fees, the board must do what is right for the Breeders' Cup and the brand it has developed over the last 37 years as a championship event that attracts the best Thoroughbreds in the world. They have the same responsibility to protect that brand as the officials at publicly traded Churchill Downs Inc. who decided enough is enough.

That's my view from the eighth pole.

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NYRA Schedules Hearings, Issues Charges, for Baffert, Vitali

The New York Racing Association, Inc. (NYRA) has issued charges and scheduled hearings for trainers Bob Baffert and Marcus Vitali, NYRA announced Friday morning.

“NYRA contends that Mr. Baffert and Mr. Vitali have engaged in conduct that is detrimental to the best interests of the sport of Thoroughbred racing or potentially injurious to the health or safety of horses or riders,” they said in a press release. “Further, as detailed in the respective statements of charges, this conduct warrants revocation or suspension of their right to train horses, enter races, or engage in any racing-related activity at all NYRA properties including Aqueduct Racetrack, Belmont Park and Saratoga Race Course.”

The statement goes on to say that NYRA has established “Hearing Rules and Procedures that provide a formalized mechanism for a respondent to reply to charges and to participate in a hearing in accordance with due process rights.” Baffert's hearing is scheduled to begin Sept. 27, 2021, while Vitali's is scheduled to begin Sept. 30.

Baffert's attorney, Craig Robertson, called the action on the part of NYRA “improper.”

“The Federal Court in New York enjoined NYRA from enforcing its suspension of Mr. Baffert pending a conclusion of that suit,” said Robertson via email. “That suit has not been concluded. As such, this is an improper attempt by NYRA to circumvent the Judge's ruling. We will address it accordingly.”

“NYRA has a responsibility to protect the integrity of the sport of Thoroughbred racing,” said NYRA President & CEO Dave O'Rourke. “We are determined to ensure the actions taken in furtherance of that goal comport with the requirements of due process, which is what the hearing rules and procedures established by NYRA provide.”

NYRA said that a designated hearing officer would ensure fairness and impartiality of the hearing's proceedings, in accordance with NYRA's hearing rules and procedures. Following the proceeding, the hearing officers will issue a report containing findings of fact, conclusions, and a recommended disposition, the release says.

Peter Sherwood, a retired New York State Supreme Court Justice, will serve as hearing officer in the Baffert case. Robert Smith, a retired Judge of the New York Court of Appeals, will serve as hearing officer in the Mr. Vitali matter.

NYRA's full hearing rules and procedures may be read here.

NYRA announced that it had suspended Baffert May 17, after his Medina Spirit (Protonico) tested positive for Betamethasone in the GI Kentucky Derby. Baffert ultimately got an injunction, and, on June 14, filed suit in the U.S. States District Court, Eastern District of New York, against NYRA, charging violations of his constitutional Fourteenth Amendment right to due process.

Included in the press release were letters delivered to Baffert and Vitali on Friday, informing the trainers of their hearing dates and asking them to reply in writing within five days, and to appear via video conference on the hearing dates. They also delivered an 11-page statement of charges to Baffert, which recounts the now-familiar tale of four medication violates in the year preceding this year's Kentucky Derby, and then the Medina Spirit Betamethasone positive in the Derby.

It concludes, “Respondent's conduct has impeded NYRA's ability to effectively supervise the activities at the racetracks it operates so that its patrons have confidence that the sport is honestly conducted, protecting competitors from the participation in tainted horse races, and safeguarding the wagering public. As a result of Respondent's conduct, NYRA seeks to exercise its reasonable discretionary business judgment to exclude Respondent from entering or stabling horses on the grounds it operates, or any portion of such grounds.”

The complete statement of charges may be read here.

Vitali's statement of charges reads, in part, “From between in or about 2010 and in or about 2020, Respondent amassed an extensive record of medication violations, lengthy suspensions, improperly using “program” or “paper” trainers during suspensions and obstructing an investigation into alleged wrongdoing. In the past five years, Respondent was denied entry, ejected and/or had license applications denied by regulators of Thoroughbred racing in Florida, Pennsylvania, West Virginia, New York and Delaware; and was sanctioned by The Jockey Club for violating a racing statute, rule or regulation relating to prohibited or restricted drugs, medications or substances seven times in a single year.” They also seek to exclude him from racing at NYRA tracks. The complete statement may be read here.

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Kentucky Judge Anxious To Remand Medina Spirit Case To Board Of Stewards

Monday morning in Franklin County Circuit Court saw attorneys for embattled trainer Bob Baffert and the Kentucky Horse Racing Commission back in front of Judge Thomas Wingate, in response to the KHRC's July 20 request that the judge compel Baffert's attorneys to reveal the results of additional testing on Medina Spirit's post-race urine sample.

The case is based on the finding of betamethasone in a post-race sample of Medina Spirit, collected immediately after the colt crossed the wire first in the Kentucky Derby.

“My understanding is that an affirmative defense is being mounted by the plaintiffs, to the extent that there may be some evidence as to how this substance (betamethasone) was introduced to the horse,” said Jennifer Wolsing, general counsel for the KHRC. “If this turns out to be a viable affirmative defense, and of course right now the Kentucky Horse Racing Commission takes no position one way or another on that issue, that if it is, then the racing commission may want to do additional testing.

“Regrettably, we're still waiting on the testing results. We can't have a stewards hearing until those testing results have come back, because that appears to form the basis of the defense the plaintiffs want to mount. We would really like those results so that we can press forward with a stewards hearing and find out more about this case.”

Counsel for Medina Spirit's trainer Bob Baffert and owner Zedan Stables, Craig Robertson, filed a civil suit against the Kentucky Horse Racing Commission on June 7 demanding their right to test the split urine sample, which sat undisturbed in the commission's freezer. Remnants of the original biologic samples were initially sent to be tested for those ingredients, but they were reportedly damaged before arrival at the plaintiffs' choice of labs, the New York Equine Drug Testing and Research Laboratory.

Judge Wingate ordered June 16 that the remaining urine sample be flown to the New York lab, that two KHRC representatives travel with the sample, and that plaintiffs fund the flight. Upon arrival, the KHRC was to retain 5 milliliters of the sample, while the remainder was to be tested for clotrimazole, gentamicin, and betamethasone valerate.

On July 14, the sample was flown to New York accompanied by Dr. Clara Fenger and Tom Huckeby, representing Baffert and Medina Spirit's owner, Amr Zedan, as well as by KHRC executive director Marc Guilfoil and equine medical director Dr. Bruce Howard.

A July 19 filing by the KHRC alleges that the urine sample was split into four milliliter and 19 milliliter segments, with the New York lab to retain the larger segment for testing. Program director Dr. George Maylin attempted to then retain the remnants of the original urine sample, which was purportedly contaminated during shipment. Maylin claimed he was unaware that the court order required those remnants be turned over to the KHRC.

When the remnants of the original sample were turned over to KHRC representatives, the filing alleges that the urine tube contained only one to two milliliters of “bloody fluid,” a broken serum separator tube, and another tube with serum that had been saved — all presented at room temperature instead of frozen. Guilfoil and Howard report that Maylin said most of the sample had been used up in testing, but would not indicate what testing was performed.

On Monday, after initial confusion over which urine sample the KHRC's motion was referring to, Wolsing represented that the commission was concerned about why the original sample had been tested when it had clearly been contaminated.

“As far as what we're asking for, we did want transparency in these test results, and we'd also like to know why the court order was violated, despite Dr. Maylin's statement to the contrary,” Wolsing said.

“Mr. Robertson says that they (KHRC representatives) took the primary sample back (to Kentucky) with them,” said Judge Wingate.

“We took back what hadn't been tested up by the New York laboratory,” Wolsing clarified. “That was a shock to us. I mean, if this primary sample is so compromised, then what in the world are they testing for?”

Robertson took over the microphone to explain.

“The primary (sample) arrived in New York in a compromised condition,” Robertson said. “New York was under instruction to test that sample, and it arrives in a compromised condition. The Kentucky Horse Racing Commission doesn't advise us that it arrives in a compromised condition until five days later. We immediately then begin the process of, 'Well, let's get the pristine split sample to New York for testing.' That took three weeks because they fought us on that. It took three weeks before there was an order entered that said, 'Test the pristine split sample.'

“During that three weeks, of course the New York laboratory has the primary sample under instructions to test it. Now I don't know what testing they did or didn't do, because I have intentionally not had any communication with them about that. But it certainly is plausible that during those three weeks, they performed some sort of testing on the compromised sample, because they were under instructions to do it, and they had no idea that they would subsequently get an additional sample. Regardless of whatever they've done on the primary sample, and the subsequent split sample, all of those results need to be disclosed to both parties at the same time.”

Following that explanation, Judge Wingate quipped: “The main thing is we need to get those results so I can remand this to the Kentucky Horse Racing Commission, and you all can fight like cats and dogs down there over whether he's the Derby horse, and what needs to happen to Mr. Baffert.”

Judge Wingate did not issue an official order, but said he would do so if the lab was unwilling to provide the test results or a date on which they would be delivered to both parties.

“You're in the driver's seat (referring to KHRC counsel), because you've already got a report that says the steroid was in the horse, and you all just need to go and do your stewards hearings is what I believe, and go from there and see what kind of penalties that the Horse Racing Commission levies on this horse and trainer,” Judge Wingate said.

And so we wait.

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