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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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Jockey Club Wants to Give ‘Unique Perspective’ in Baffert vs. NYRA Suit

The Jockey Club (TJC) now wants to get involved in trainer Bob Baffert's federal lawsuit against the New York Racing Association (NYRA), which seeks to overturn his banishment from stabling and racing horses at Belmont Park, Saratoga Race Course, and Aqueduct Racetrack.

In a June 22 letter to United States District Court (Eastern District of New York), Susan Phillips Read, an attorney for TJC, asked permission to file an “amicus” brief that she believes will “provide the Court with a unique perspective and information to assist in deciding the pending motion for preliminary injunction.”

Baffert was told by NYRA that he was not welcome to stable or race at the association's three tracks on May 17 in the wake of his disclosure that Medina Spirit (Protonico) had tested positive for betamethasone after winning the GI Kentucky Derby. That revelation by Baffert was later confirmed by split-sample testing at two different labs approved by the Kentucky Horse Racing Commission, but no ruling has yet been issued over those findings.

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

The betamethasone finding in the Derby was the fifth positive test in a Baffert trainee for a regulated but prohibited-on-race-day drug within the past year (two others were for lidocaine, one was for dextrorphan, and another also for betamethasone). It was the third during that time frame to occur in a Grade I stakes.

While all of this has been going on, Baffert has also been embroiled in a long and complicated court and racing commission battle in California over whether to disqualify 2018 Triple Crown winner Justify from that year's GI Santa Anita Derby because of a scopolamine finding.

“TJC has long believed that horses must only race when they are free from the effects of medication, and vociferously advocated for the passage of The Horseracing Safety and Integrity Act,” Read wrote. “TJC thus has a special interest in sharing with the Court its perspective regarding the deleterious effects of improper drug use on the health of horses, the Thoroughbred racing industry, and public trust in the honesty of competition.

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

Read wrote that she has asked the attorneys for both parties for consent to file TJC's amicus brief. NYRA's counsel has given permission; Baffert's has not.

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Fact Check: The Pharmacology Of Betamethasone In Horses

It's clear that the battle over the outcome of the 2021 Kentucky Derby is likely to wage on for years to come. The Kentucky Horse Racing Commission (KHRC) has yet to make a ruling, but preliminary and split sample tests on winner Medina Spirit both came back positive for betamethasone in violation of Kentucky rules. Attorneys for Medina Spirit trainer Bob Baffert and owner Zedan Stables have been vocal about their feelings that the finding in the horse shouldn't matter for a variety of reasons — they say the administration of the drug to the horse came from a topical and not an injectable, they claim that post-race drug testing is designed to find therapeutic drugs at an unreasonably small concentrations, and they claim that the concentration found in Medina Spirit had no appreciable impact on the outcome of the race.

Further, Baffert attorney Craig Robertson said in a CNN interview June 3, a small amount of betamethasone detected in blood couldn't even be having an appreciable impact on the horse's body.

“Just because that's the rule doesn't mean that it's a proper rule,” Robertson said to anchors John Berman and Brianna Keilar on New Day. “And the reason why it's not a proper rule is that at that level, there would be zero pharmacology in a horse – zero – and it would have had no effect on this race. And one thing that you haven't heard, and you will not ever hear, is an equine pharmacologist to come out and say that 21 picograms, 25 picograms would have any pharmacology in a horse. They're not going to say that, because they can't say that.”

But the research – what little peer-reviewed research exists on betamethasone in horses — doesn't support that.

It's difficult to know what concentration of a drug in a horse does or doesn't influence a race; that's a separate question altogether, but there have been two peer-reviewed studies published in recent years which suggest that even small amounts of betamethasone in the blood may indeed reflect some effect on a horse's body.

A study published in the Journal of Veterinary Pharmacology and Therapeutics in 2015 sought to learn more about the pharmacology of intra-articular betamethasone injections in horses. Researchers administered two intra-articular betamethasone to eight 4-year-old Thoroughbreds and exercised them, then took blood and urine samples to check on levels of betamethasone and hydrocortisone for six weeks.

They found that the administration of betamethasone coincided with a reduced production by the horses' bodies of hydrocortisone. Hydrocortisone is naturally produced by the horse's body and acts similarly to its fellow corticosteroid betamethasone. There are synthetic versions of hydrocortisone out there in therapeutic medications, too.

It's thought that circulating levels of a closely-related, administered drug are read by the horse's brain similarly to the endogenously-produced substance, and the brain will halt production of its own corticosteroid until the synthetic corticosteroid wanes. The study found that the suppression of hydrocortisone was present for 96 to 120 hours after the administration of betamethasone.

The study found the last detectable level of betamethasone in plasma at an average of 64 hours post-injection and 69 hours in urine, although those measurements were using .05 nanograms per milliliter (or 50 picograms per mL) of plasma and .25 nanograms per milliliter (or 250 picograms per mL) of urine as their limit of detection – much larger concentrations than what was detected in the Medina Spirit case.

More interestingly though, in 2017 the journal Drug Testing and Analysis published a study which examined the concentrations of betamethasone in blood, urine, and joint fluid in Thoroughbreds. That study found that when betamethasone was injected in a horse's joint, concentrations of the drug in fell below detectable levels much sooner in plasma (96 hours) and urine (seven days) than it did in joint fluid. It took between 14 and 21 days for the drug to disappear from joint fluid in the joint that received the treatment.

“One of the basic tenants of pharmacokinetic/pharmacodynamic analysis is that blood levels reflect drug concentrations at the site of pharmacologic effect, thereby allowing the extent and duration of effect to be estimated based on blood concentrations,” wrote the study authors, led by Dr. Heather Kynch. “However, this does not appear to be the case for intra-articular corticosteroids.”

The study's findings were not wholly surprising, given that corticosteroids generally are known to be a little fickle in their withdrawal times. One previous study found triamcinolone in joint fluid for 35 days after a joint injection, and another found methylprednisolone 77 days after a single intra-articular dose.

Knych's study also noted that the diffusion of drugs from joints may vary from one joint to another.

“Although more comprehensive pharmacodynamic studies are necessary, these findings suggest that the anti-inflammatory effects may continue even though drug is no longer detected in blood,” wrote the Knych team. “A major concern with this finding is that horses may be able to return to racing before they are completely healed following an injury. Even though blood concentrations would be below the recommended threshold, allowing the horse to race, therapeutic drug concentrations in the joint may mask the clinical signs of an injury that is not completely healed. This could ultimately increase the risk of additional damage to the joint.”

At the time Knych and her team performed that study, the Racing Medication and Testing Consortium (RMTC) recommended a seven-day withdrawal of corticosteroids to clear a regulatory threshold of 10 picograms per mL. In the intervening years, jurisdictions like California and Kentucky backed up their corticosteroid administration timeframes to coincide with additional layers of pre-race veterinary checks performed to improve safety after the Santa Anita fatalities. In Kentucky, any level of corticosteroids like betamethasone in a post-race sample is a violation, based on the belief that the drug now can't be found farther out than 14 days post-administration.

Perhaps incredibly, those two studies seem to be the bulk of the peer-reviewed, published research that has been done on the behavior of betamethasone in a horse's body. It's not uncommon for research into equine medications to be limited, even for commonly-used therapeutic drugs like betamethasone.

Baffert's view on the Medina Spirit case would likely dismiss both studies as irrelevant. He asserts he gave the drug via a topical cream to treat a skin condition, not a joint injection, as was done in both studies. Further testing of the blood and urine from Medina Spirit will seek to clarify whether the betamethasone found in the horse came from an injection or an ointment, and it seems that will be an ongoing point of debate for his legal team. But with the limited peer-reviewed research available, the suggestion that the drug doesn't have any pharmacological effect at low levels of detection in blood is going to be an uphill battle.

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Judge Orders Specific Additional Testing Of Medina Spirit Split Sample

Judge Thomas Wingate issued a written decision on June 16 regarding plans for the remaining urine sample of Kentucky Derby first place finisher Medina Spirit, reports bloodhorse.com. The decision follows a June 11 hearing in Franklin County Circuit Court, in which Judge Wingate determined that the legal team for Medina Spirit's connections will be permitted to do extra testing on a urine sample (the “split sample”) taken from the colt after the Kentucky Derby and held by the Kentucky Horse Racing Commission.

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.

Counsel for Medina Spirit's trainer Bob Baffert and owner Zedan Stables filed a civil suit against the Kentucky Horse Racing Commission last week 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.

Judge Wingate ordered Wednesday that the remaining urine sample will be flown to the plaintiffs' choice of lab for testing, that two KHRC representatives travel with the sample, and that plaintiffs will fund the flight. Upon arrival, the KHRC will retain 5 milliliters of the sample, while the remainder will be tested for clotrimazole, gentamicin, and betamethasone valerate.

Those are the three active ingredients in Otomax, a topical cream which attorneys for Baffert and Zedan claim is behind the positive finding of betamethasone in Medina Spirit. Attorneys for Baffert and Zedan went to court to push for the the testing because they believe lab evidence backing up the presence of Otomax's ingredients would prove to be exculpatory or mitigating when Kentucky stewards eventually conduct a hearing on the case.

Jennifer Wolsing, general counsel for the KHRC, declined to speculate on whether a topical administration of betamethasone would require an exoneration in the case or whether it could be considered a “mitigating circumstance” with regards to penalty. She did point to the commission's drug classification guidelines, which make reference to betamethasone without specifying what route of administration would result in a Class C finding. The only question at hand for the June 11 proceeding, she asserted, was what was to be done about further testing of the remaining biological samples.