Baffert Files New York Lawsuit Claiming NYRA Has No Legal Authority For Suspension

Bob Baffert has filed a lawsuit against the New York Racing Association in United States District Court, Eastern District of New York, reports the Thoroughbred Daily News, seeking to overturn NYRA's May 17 decision to not accept his entries or allow him stall space.

Patrick McKenna, NYRA's Senior Director of Communications, issued the following statement Monday: “On May 17, the New York Racing Association, Inc. (NYRA) temporarily suspended Bob Baffert from entering horses in races and occupying stall space at Belmont Park, Saratoga Race Course and Aqueduct Racetrack. NYRA took this action to protect the integrity of the sport for our fans, the betting public and racing participants following Mr. Baffert's public acknowledgement that the Kentucky Derby winner Medina Spirit tested positive for betamethasone, a banned corticosteroid.

“In making the determination to temporarily suspend Mr. Baffert, NYRA took into account the fact that other horses trained by Mr. Baffert have failed drug tests in the recent past, resulting in the assessment of penalties against him by thoroughbred racing regulators in Kentucky, California, and Arkansas.

“NYRA will vigorously defend the action it has taken in this matter.”

The lawsuit, filed by attorney Craig Robinson, argues that NYRA does not have the legal authority to suspend Baffert. It alleges that while NYRA is a non-profit corporation, it “is specifically governed by the New York law that grants it the exclusive franchise to conduct live Thoroughbred racing and simulcasting at the state-owned racetracks on behalf of the state, from which the state derives substantial revenue.”

As such, the suit contends, the only entity with the authority to suspend Baffert is the New York State Gaming Commission. That, in turn, would mean that Baffert is protected from violations of his right to due process, which the suit alleges would include suspending the trainer prior to the completion of the Medina Spirit investigation by the Kentucky State Horse Racing Commission.

The suit reads: “Specifically, Baffert maintains a right to rely upon and use his New York State occupational trainer's license that was duly issued to him without limitation by the New York State Gaming Commission (the “Gaming Commission”); NYRA has, without legal authority, and without any notice or opportunity to be heard, attempted to indefinitely suspend Baffert's trainer's license issued by the Gaming Commission, thereby preventing Baffert from practicing in his chosen profession or using his state-issued license on state-owned property.”

Read more at the Thoroughbred Daily News.

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What Will That Extra Urine Testing In The Medina Spirit Case Actually Tell Us?

Attorneys for Medina Spirit's connections spilled a lot of ink last week to ensure their clients will have the opportunity to run extra tests on a split sample of the horse's urine. They hope to demonstrate that the betamethasone detected in two rounds of testing after the Kentucky Derby was the result of a topical ointment applied for a skin rash, not an injected treatment to relieve pain or inflammation. The eventual goal, according to a civil suit filed in Franklin Circuit Court over that extra testing, will be to argue that a topical application of betamethasone isn't prohibited by Kentucky regulations and that repercussions for trainer Bob Baffert and owner Zedan Racing should therefore be mitigated. A judge ruled on June 11 that the extra testing will go on, and it only remains for the Kentucky Horse Racing Commission and the horse's connections to agree on how much urine will be tested.

The second objective, the question of whether administration route matters, will come down to a long (and probably dry) legal argument. The first objective, the proof of where the betamethasone came from, hangs on that extra testing, which means this is a good time to ask – can extra urine testing actually prove the origin of the betamethasone in question?

Maybe, says equine drug testing expert Dr. Rick Sams. But maybe not.

There are two ways that drug testing could try to establish whether the betamethasone came from an ointment or an injectable: by looking for the other ingredients in Otomax, the topical cream Baffert eventually said was used to treat a rash on Medina Spirit's hindquarters, or by identifying the exact chemical makeup of the betamethasone in the sample.

Besides betamethasone, Otomax also contains gentamicin, an antibiotic, and clotrimazole, an anti-fungal. Post-race samples aren't tested for most antibiotics or antifungals because those drugs are not acting directly on the body of the horse — they're designed to combat bacteria or fungi. As such, most of them aren't regulated in racehorses the same way an anti-inflammatory is, so it's not surprising that these ingredients weren't reported on the initial post-race test or in the split sample.

(Procaine penicillin is the common exception to this, since procaine is a numbing agent also used in other ways, outside the combination with penicillin. Penicillin is known to cause some discomfort in horses when injected, so it's often formulated with procaine to make repeated administrations more tolerable.)

Sams worries however that it's unlikely either of those drugs would have made it into the horse's urine in a sufficient amount to be testable, because they were given as topicals. They were present in a topical application with the directive to work on a surface- level skin rash, so their purpose was to work on bacteria or fungi on the skin's surface. He suspects they weren't designed to be readily absorbed through the skin and into the bloodstream, since most of their work was to take place on the outside of the horse.

“I think the likelihood of gentamicin ever getting absorbed in sufficient quantities to show up in the urine is essentially zero,” he said.

In the case of clotrimazole, it's present in very low levels in Otomax, making it even less likely it would be absorbed.

“There are no studies I can find that demonstrate any appreciable absorption of clotrimazole after topical administration,” Sams said.

It's also not immediately clear how many accredited racing labs would be able to test for either substance, because it's not part of the usual battery of post-race tests. A civil court hearing June 11 revealed that New York's Equine Drug Testing Program housed at Morrisville State College will conduct the extra testing.

The other thing Zedan and Baffert hope the extra testing will reveal is the chemical makeup of the betamethasone detected in post-race sampling. Otomax contains betamethasone valerate, which is chemically different from betamethasone acetate and betamethasone sodium phosphate – the two versions of betamethasone used in injectable products. The words acetate, sodium phosphate, and valerate all refer to esters, which are chemical compounds derived from acids that are attached to a molecule of betamethasone.

“If one was to look for the valerate ester and find it, that would demonstrate that something other than the injectable preparation was administered to the horse,” said Sams. “But I think the chance of finding the valerate ester of betamethasone is zero, because the valerate ester has very low water solubility, and substances have to have water solubility to get excreted into the urine so I don't think it ever gets into the urine as valerate.”

It's possible that the legal team will ask the lab to look for betamethasone acetate and betamethasone sodium phosphate instead, with the idea that if they aren't found, that would demonstrate the horse wasn't given injectable betamethasone. Sams said the betamethasone acetate is, similarly to betamethasone valerate, not all that water soluble and therefore he wouldn't expect to find it in urine, even if it had been administered to the horse. The sodium phosphate ester however, is very water soluble and that may be excreted into the urine readily. Sams has done previous research on a chemically similar ester and found it was pretty easy to detect.

Racing labs aren't typically asked to determine which form of a drug like betamethasone is in a sample and Sams said he is not aware of any racing lab ever previously attempting to make this distinction.

So how helpful could this additional testing be? Its usefulness to Bob Baffert and Zedan Racing may be more about what it doesn't show than what it does. If the testing confirms betamethasone but can't determine which form is present, or finds no evidence of either injectable version, the attorneys may point out that there is no evidence to refute Baffert's version of events.

Of course, Sams and many others have stated that they don't believe Kentucky's rules differentiate between routes of administration for regulated substances like betamethasone. Whatever Baffert and Zedan hope to learn from the extra testing they've fought for, they will no doubt look to challenge that belief in court proceedings that may stretch on for months or years to come.

The post What Will That Extra Urine Testing In The Medina Spirit Case Actually Tell Us? appeared first on Horse Racing News | Paulick Report.

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Baffert Files Suit Against NYRA

Bob Baffert has filed suit in the United States District Court, Eastern District of New York, against the New York Racing Association charging violations under the Fourteenth Amendment to the U. S. Constitution violating his right to due process.

The suit was filed Monday by Baffert's attorney Craig Robertson.

NYRA announced that it had suspended Baffert May 17, after it was revealed that Medina Spirit (Protonico) had tested positive for Betamethasone in the GI Kentucky Derby.

The suit reads, “Specifically, Baffert maintains a right to rely upon and use his New York State occupational trainer's license that was duly issued to him without limitation by the New York State Gaming Commission (the “Gaming Commission”); NYRA has, without legal authority, and without any notice or opportunity to be heard, attempted to indefinitely suspend Baffert's trainer's license issued by the Gaming Commission, thereby preventing Baffert from practicing in his chosen profession or using his state-issued license on state-owned property.”

When asked if he would be filing a similar lawsuit against Churchill Downs, which has also banned the trainer, Baffert's attorney Craig Robertson said he was not representing Baffert on any legal issues related to Churchill Downs. He declined to comment further.

In the suit, Baffert seeks, among other things, a declaration that NYRA is prohibited from denying horses he owns or trains from entering races at NYRA tracks, denying him the privileges of the grounds, and denying him stall space. He is seeking a preliminary and permanent injunction from NYRA from further banning him from the tracks, and says that if that does not happen, he will suffer immediate and irreparable harm.

Attachments to the suit include a letter sent to Baffert from NYRA May 17 outlining the reasons for the suspension. The letter, signed by NYRA President and CEO David O'Rourke, reads, “NYRA has determined that the best interests of Thoroughbred racing compel the temporary suspension of your entering horses in races and occupying stall space at our racetracks. To do otherwise would compromise NYRA's investment in its operations as well as the public's perception of Thoroughbred racing generally.”

The letter says that NYRA would make a final determination on the length and the terms of the suspension in the future “based on information revealed during the course of the ongoing investigation in Kentucky.”

The suit makes a distinction between NYRA and other private entities.

“NYRA is a not-for-profit franchised corporation created by the State of New York. However, unlike other state-created not-for-profit corporations, the existence and operation of NYRA is specifically governed by the New York law that grants it the exclusive franchise to conduct live Thoroughbred racing and simulcasting at the state-owned racetracks on behalf of the state, from which the state derives substantial revenue.”

The suit continues, “NYRA controls the operation of all major Thoroughbred racetracks within the State of New York and operates as an effective monopoly. NYRA does not have the legal authority to suspend Baffert–that rests solely with the Gaming Commission as the entity that issued his occupational license–a license that affords Baffert a property interest under state law sufficient to invoke due process protections. Despite this fact, by purporting to summarily and indefinitely suspend Baffert from all NYRA tracks, NYRA has essentially barred Baffert from exercising his professional and State-issued trainer's license anywhere in the State of New York. Additionally, NYRA has purported to suspend Baffert and the use of his license without any notice or opportunity to be heard in violation of due process. Lastly, by connecting Baffert's “suspension” to the Kentucky investigation, which is likely to go on for years, NYRA has correspondingly banned Baffert from participating in New York racing for several years.”

In response to Baffert's lawsuit, NYRA's Senior Director of Communications Patrick McKenna, issued the following a statement.

“On May 17, the New York Racing Association, Inc. (NYRA) temporarily suspended Bob Baffert from entering horses in races and occupying stall space at Belmont Park, Saratoga Race Course and Aqueduct Racetrack. NYRA took this action to protect the integrity of the sport for our fans, the betting public and racing participants following Mr. Baffert's public acknowledgement that the Kentucky Derby winner Medina Spirit tested positive for betamethasone, a banned corticosteroid. In making the determination to temporarily suspend Mr. Baffert, NYRA took into account the fact that other horses trained by Mr. Baffert have failed drug tests in the recent past, resulting in the assessment of penalties against him by Thoroughbred racing regulators in Kentucky, California, and Arkansas. NYRA will vigorously defend the action it has taken in this matter.”

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Former Baffert Trainee Du Jour Pointed For Grade 1 Belmont Derby

Du Jour, the winner of the G2 American Turf when conditioned by embattled trainer Bob Baffert, has been transferred to the barn of Bill Mott, according to the Daily Racing Form. The 3-year-old colt, owned by Baffert's wife, Jill, in partnership with Debbie Lanni, is being pointed to the Grade 1 Belmont Derby on July 10.

Baffert has been indefinitely banned from entering horses or utilizing stalls at New York Racing Association racetracks after the Medina Spirit Kentucky Derby controversy, including Belmont Park, hence the trainer switch.

Du Jour, a son of Temple City, has breezed twice for Mott at Belmont: a 49.23-second half on June 6, and a 48.62-second half on June 13. Mott said he believes the colt can move up in distance from the 1 1/8 miles of the American Turf to the 1 1/4 miles of the Belmont Derby.

Other horses reported to have been moved out of Baffert's barn include Bezos, Hozier, and Crystal Ball. All three have been transferred to Rodolphe Brisset, reports Horse Racing Nation, but the new trainer indicated the change has nothing to do with Baffert's Medina Spirit controversy.

“It's just the ownership and Mr. Baffert talked and decided to leave those horses around here and not bring them back to California,” Brisset told HRN.

Hozier will be pointed to the G3 Ohio Derby on June 26 at Thistledown, while Crystal Ball is headed to the Lady Jacqueline Stakes on the same card. No target has yet been named for Bezos.

Read more at the Daily Racing Form and at Horse Racing Nation.

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