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Letter to the Editor: Time for Horse Racing to Exhale

by Armen Antonian, Ph.D.

Horse racing is stuck: stuck in the winter of 2019. Stuck at my home track at Santa Anita. That Santa Anita winter meet saw 37 horses euthanized and the meet stopped for a time due to horse safety concerns. California Senator Dianne Feinstein admonished the track publicly and Governor Gavin Newsom called horse racing “archaic.” There was real fear among Santa Anita officials for the continuation of horse racing in California.

The events at Santa Anita were a trauma that reverberated around the U.S. racing world. The critics had been jabbing at racing for decades as societal mores regarding animals had changed dramatically. Suddenly, the entire industry found itself in a huge public relations and political crisis from which it has not escaped.

California and Santa Anita led the reforms aimed at making racing safer. Horses would be screened, medical records transparent, medication levels and rules therein standardized and much more. Throughout the country, industry practices changed dramatically. Did the changes work? Yes, the changes have worked. There were 11 deaths at the recently concluded Santa Anita winter meet. Racing fatalities have dropped significantly in California. That is the story that needs to be told throughout the country. Racing is back on a solid foundation. But that is not what is happening looking at the headlines today. Far from it.

I was recently mingling among young fans at Hollywood Gold Cup Day at Santa Anita. They were as full of the wonder and joy of racing as I was in the late 1960s as a youth. My immigrant Armenian dad (who had been seized from Russia by the Nazis for forced labor during World War II) would tip the ushers so we could have a precious box up in the stands with the owners, movie stars and the trainers. There was actor John Forsythe. Walking by, always expressionless, was trainer Charlie Whittingham. What great horses I saw at Santa Anita over the years: Damascus, Affirmed, Spectacular Bid! And many years later, what event could compare with my experience at a Kentucky Derby? I thought to myself: who is going to educate this generation about racing and keep them in the game to see what I saw? The racing industry or the critics?

The choice is immediate. Why is the industry, in its entirety, not stepping forward and telling a renewed story of a sport that is as brilliant as its horses and its people and of a sport again ready to regain luster? The industry is not seizing the moment because the critics continue to set the dialogue. The critics' paradigm about racing is what prevails in the general media.

Just what do the critics say about horse racing? To start, they see no beauty in the interaction of humans to horses. This is an extreme position and must be so noted and challenged by industry spokespeople. The critics see no beauty or sport in the competition of horses. They start with the fact that horses die. But for the critics, horses die only in racing. The critics do not like to admit that horses also die in nature. The industry must counter that horses are actually better off in racing than in nature. Nature is not neutral. Nature is more about Darwin than Bambi. And, aesthetically, racing can be beautiful–something the critics, a priori, will not admit.

The critics then attack horse racing from another angle. Horses are drugged. And winning horses are “juiced.” The critics prey on a vague notion that has lingered about the sport that it is somehow rigged. I call this the film noir version of horse racing: everyone in racing is seedy or greedy or crooked. We have all seen some fragments of this view in a plot of an old movie. Such a notion is palpably false. Trainers know how hard it is to win a race. The general public needs to be better educated about the game. This dark view of racing needs to be met head on. How are races really won: pace, class, conditioning, etc. Young folk are hungry for information about the game. At the track, they have mountains of questions. Racing needs to continually educate the fanbase. Instead, recent events and industry decisions have actually fueled this pejorative film noir view of racing.

By 2021, the industry had made great strides in the area of horse safety. In watching what transpired after the positive test result for Medina Spirit, one wouldn't know it. After news of the first test positive, Churchill Downs suspended the trainer from entering horses at its track. Such a definitive response opened the door for the critics to create the spin about the Derby result, a result that quickly came to be viewed as bogus. The trainer later pointed to a creme for a rash as the (undetermined) reason for the test result. Even this purported creme explanation was used by one critic's group to state that the creme was given purposely to mask a secret injection of Medina Spirit before the Derby. And so it went…

The general press, not especially astute at covering horse racing these days, followed a story that was defined by one side. Not surprising where they too ended up. There was no industry spokesperson to counter the excesses of the public discussion which cast a long shadow about racing's product itself. As the second positive result came in from the lab, Churchill was categoric in its response and its accompanying statement fed readily into the critics' dialogue that the race result was phony and that racing Medina Spirit was not safe. A drastic measure of a two-year suspension by Churchill of the trainer was proposed. The extent of the suspension cast further suspicion about Medina Spirit's Derby victory.

Before the vitriol and the finger pointing ensued, it would have been nice to hear someone stop and say that it was “a good thing” Medina Spirit's rash was treated.

The Derby product is racing's product and its results cannot be picked apart so readily. But that is what happened. Ironically, those with little expertise in horse racing defined the illegitimacy of a Derby result while those with expertise remained largely silent. So we learned from the charges led by the critics and found in the general press that it was not safe to race Medina Spirit Derby Day and his win was not an honest result. When Churchill made an official pronouncement, it used words like integrity and safety. The critics' talking points about Medina Spirit's Derby run and that of Churchill management were comparable. “Integrity” casts doubt on the veracity of the Derby result. The victory of Medina Spirit has not yet been adjudicated so how is it illegitimate as it stands? Safety? Medina Spirit ran two weeks later in the Preakness without incident. Where did the notion that Medina Spirit was not “safe” to race Derby Day come from?

A Pandora's Box was opened. About that time, a friend called me up and said, “Hey, I heard they gave steroids to the Derby winner, just like Lance Armstrong.” Medications and the levels therein will take time to work out. The rules have just been put in place. The industry must be patient. The rules must be tried and tested and workable for horsemen also. And let's find out what really happened before we denigrate a Derby winner. Let whatever litigation take place that needs to take place in the courts.

The sport of U.S. racing is its history. And Triple Crown history is its ultimate statement. The overreactions of Churchill have disparaged its own product and unfortunately fueled the film noir view of racing promoted by the critics. There is no mechanism to step in and help a racetrack deal with the fallout of critical circumstances. The industry needs a permanent, day-to-day, public relations and political entity that can respond in the industry's general interest. Such a body can also proactively educate the public and the general press about horse racing today.

It is time for the industry to exhale and tell its story. Safety? Horse racing is much safer today. Say so. Time for racing to recount its tradition to a new generation and disseminate its renewed story to everyone. Time to again be proud. Time to take the narrative about racing away from the critics.

Armen Antonian holds a doctorate in political economy and political philosophy and is a lifelong racing fan.

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More Allegations of Damaged Samples in Medina Spirit Testing

An attempt by the connections of Medina Spirit (Protonico) to have a third-party lab perform a new series of tests on the colt's bodily fluids in the wake of the colt's GI Kentucky Derby betamethasone positive has resulted in allegations by the Kentucky Horse Racing Commission (KHRC) of a “lack of candor and contemptuous conduct by the New York Laboratory, [trainer Bob Baffert and owner Zedan Racing Stables], or both.”

According to a status report and motion for order filed in Kentucky's Franklin Circuit Court July 19, the KHRC wants the judge in the case to compel that Baffert and/or Zedan Racing disclose what methods of testing were performed on a urine sample whose remnants allegedly came back damaged after undergoing testing July 14 in New York.

It is the second time in seven weeks that a party in this court case has alleged that samples came back contaminated from an accredited lab.

On June 1–the same date that Medina Spirit's referee sample was announced as positive–the KHRC informed Baffert and Zedan that body fluid remnants had been damaged during transport to the split-sample testing lab.

The July 14 new round of testing performed by the New York Equine Drug Testing and Research Laboratory was part of a court mandate in a lawsuit initiated by Baffert and Zedan Racing on June 7 that sought, in part, some form of “limits of detection” testing that could purportedly show that the betamethasone was present along with other compounds in the topical ointment Otomax.

Betamethasone is a corticosteroid allowed in Kentucky as a therapeutic medication, but state rules require at least a 14-day withdrawal time before racing.

Attorneys for Baffert and stable owner Amr Zedan have stated a desire to prove that the Derby winner's betamethasone positive–which has yet to be adjudicated by the KHRC–resulted from an ointment to treat a skin condition and not from an intra-articular injection.

Yet any level of detection on race day is a Class C violation in Kentucky, with no distinction listed in the rules pertaining how the substance got inside a horse.

Tim Sullivan of the Louisville Courier-Journal reported Tuesday that KHRC executive director Marc Guilfoil and equine medical director Dr. Bruce Howard transported a second urine sample to New York while accompanied by Dr. Clara Fenger and Tom Huckabee, who represented Baffert and Zedan.

Sullivan wrote that, “In signed affidavits, Guilfoil and Howard said the [New York] lab's program director, Dr. George Maylin, initially insisted on retaining remnants of the original sample, and subsequently said he had not read the court order requiring the return of those remnants despite a June 21 email in which he had pledged to abide by that order….

“When the remnants were ultimately produced, however, the KHRC filing says 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, as preferred. According to Guilfoil and Howard, Maylin explained that most of the urine sample had been used up in testing, but did not provide a clear answer when twice asked what testing had been conducted,” the Courier-Journal story explained.

Maylin did not immediately respond to an interview request from the Courier-Journal on Tuesday.

W. Craig Robertson, an attorney for Baffert and Zedan, told the paper the plaintiffs would be responding in court, adding that, “The statements contained in the KHRC's status report are inaccurate. We have intentionally had no direct communication with the New York lab, so we are unaware of any testing or the results.”

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KHRC Alleges ‘Lack Of Candor And Contemptuous Conduct’ By New York Lab, Baffert Attorneys

The Kentucky Horse Racing Commission filed a status report and motion for order on Monday in the Medina Spirit case, reports the Courier-Journal, requesting that Franklin Circuit Judge Thomas Wingate compel trainer Bob Baffert's attorneys to disclose results of testing on a urine sample the court had ordered sent to the New York Equine Drug Testing and Research Laboratory. The KHRC is alleging “lack of candor and contemptuous conduct by the New York Laboratory, plaintiffs, or both.”

Judge Wingate issued a written decision on June 16 regarding plans for the remaining urine sample of Kentucky Derby first place finisher Medina Spirit. 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 KHRC.

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 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.

Judge Wingate ordered June 16 that the remaining urine sample be flown to the plaintiffs' choice of lab for testing, the New York Equine Drug Testing and Research Laboratory, 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 Huckabee, 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.

The 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 contaminated during shipment, claiming he was unaware that the court order required those remnants be turned over to the KHRC.

When the remnants 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. Guifoil and Howard report that Dr. Maylin said most of the sample had been used up in testing, but would not indicate what testing was performed.

“We will be formally responding to the Court,” Baffert's attorney, Craig Robertson, told the Courier-Journal. “The statements contained in the KHRC's status report are inaccurate. We have intentionally had no direct communication with the New York lab, so we are unaware of any testing or the results. This will be detailed in our response.”

Legal Expert Bennett Liebman on Who Won, Who Lost in Baffert Decision

As a Government Lawyer in Residence at Albany Law School and an adjunct professor of law, attorney and educator, Bennett Liebman has long had his finger on the pulse when it come to racing's rules, regulations and laws. He has written extensively on the subjects of due process and whether or not racetracks have the right to exclude licensees, two key elements of Bob Baffert's lawsuit against NYRA in which he sought injunctive relief to have his suspension temporally overturned. For three years, the New Yorker was Deputy Secretary to the Governor for Gaming and Racing. For more than a decade, he was a member of the New York State Racing and Wagering Board.

The TDN asked Liebman to take a deep dive into the ruling handed down last week by Judge Carol Bagley Amon of the United States District Court, Eastern District of New York that granted Baffert an injunction that will allow him to run horses at the Saratoga meet.

TDN: Baffert got the preliminary injunction he sought that allows him, for now, to race in Saratoga. That was because the judge ruled that Baffert's due process rights had been violated. But NYRA also won when it comes to an important point. The judge ruled that NYRA does in fact have the right to exclude someone, which they may ultimately do with Baffert once he has had a hearing. So which side was the winner and which side the loser?

BL: Baffert was the clear winner here. The only real point he lost on was on NYRA's power to exclude. And I'm not sure if (Baffert's legal team) was really serious about that issue. On all other issues, the judge clearly ruled for Baffert. Other than the power to exclude, everything in this decision could have been written by Baffert's attorneys. Really, everything. It's as if the judge discounted everything that NYRA put in. It was unnecessarily anti-NYRA.

TDN: As already mentioned, the judge made it clear that NYRA does have the right to exclude Baffert, which very well could eventually happen. How, then, is it that Baffert was “the clear winner?” Why isn't the validation of NYRA's right to exclude a bigger deal than you make it out to be?

BL: It was generally assumed all along that NYRA and all the state's racetracks have the power to exclude licensees. If NYRA follows the judge's decision, the course is to hold an unbiased due process hearing on whether they should exclude Baffert. Once that is done they will have the right to exclude him.

TDN: The judge ruled that NYRA violated Baffert's due process rights because it did not give him a hearing before suspending him. Did NYRA make a strategic error by not giving him that hearing?

BL: The judge clearly thought so. It's very hard for me to sit back and judge what NYRA did or should have done. But the judge clearly thought they would have been within their rights to have given him a hearing and that they would have been much better off to have given him a hearing before they made a decision to exclude him.

TDN: At the hearing, NYRA's lawyers said that a decision would be made regarding the terms and lengths of Baffert's suspension following an Aug. 11 meeting of the Board of Directors. What's your take on that?

BL: That's not normally something the Board of Directors does. The Board of Directors' main job is approving the budget. It's not exactly a judicial body of any note. My assumption is that NYRA will likely hire one judge or a panel of hearing officers. You would expect distinguished people, perhaps former judges, and have them make the assessment. Then NYRA management would follow their assessment. You would think that's how it is going to play out. It's hard for me to imagine, although they raised this, that this is a decision that will be made by the Board of Directors. In something like this, a board of directors does not normally get involved.

TDN: Should NYRA eventually suspend Baffert, what can he do to fight back?

BL: I think they would follow the same procedures that were used to get the temporary injunction and go back to federal court. This time, I think they would follow the case of Dr. (Michael) Galvin. He was a veterinarian who got his NYRA exclusion overturned after arguing that the procedures used by NYRA were biased against him.

TDN: A big issue in this case was whether or not NYRA was a state actor. It was largely believed that if it was determined by the court that NYRA was affiliated with the state then there would be limits to what it could and could not do with Baffert vis a vis a privately owned racetrack. How did the court find on this matter?

BL: The court agreed that NYRA was a state actor and that was a huge deal. If the court found that NYRA was not a state actor then what it did would have clearly been ok. But the judge determined that NYRA was a state actor. It's a very contentions issue. I think the judge put her thumb on the scales in favor of state action. But it's always going to be a difficult issue.

TDN: Is that why, to date, Baffert hasn't taken any legal action to have the ban issued by Churchill Downs overturned? Obviously, Churchill is privately owned and not a state agency.

BL: I'm not sure if I can assess Baffert's lawyers' motivation, but Churchill is clearly a private company. The case law in Kentucky clearly gives the tracks there considerable power over licensees. The other part here is they have a bigger issue to deal with with Churchill Downs, which is the disqualification of Medina Spirit in the Derby. They might want to deal with the disqualification issue first before they challenge Churchill on the Baffert suspension.

TDN: Was the court's decision in any way a game-changer? What impact will it have on future decisions regarding due process and the right of racetracks to exclude someone?

BL: Because NYRA is so unique, you can't say this will have a huge impact on other jurisdictions and other racetracks. NYRA's unique circumstances make this a one off when it comes to other cases. What was odd to me was the judge's determination that Bob Baffert will be harmed so extensively if not allowed to race at Saratoga. That's at a track where he normally, over the last 10 years, has raced about five times a meet. On its face, banning Baffert from a track where he rarely appears doesn't seem to be irreparable harm. That's the one issue that I think might have an effect on other cases, that someone who might occasionally show up at a track can argue irreparable harm and get a temporary restraining order if they are banned.

TDN: The Jockey Club filed an amicus brief in support of NYRA. Did that have any impact?

BL: The main reference to the Jockey Club is in a footnote. There's only one other reference, on how over the past 10 years Baffert had never gone a year without racing at a NYRA track. From reading her decision, it doesn't appear as if the Jockey Club brief had much of an impact. It is minimally referred to in the decision.

TDN: Are there any other unanswered questions?

BL: One is whether or not NYRA will appeal (Judge Amon's decision). I don't know. Instead of doing that they can simply go ahead and give him a hearing. Another question is whether or not NYRA will give Baffert stall space? There was nothing in the ruling that covered that. There's an easy way around that. He can easily find some place to stable at off track. I don't think NYRA's exactly going to make Clare Court available to him.

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