Report: Derby DQ May Come Down To Legal Phrasing

As discussion around Kentucky Derby winner Medina Spirit's positive betamethasone test continues, the attorney for owner Amr Zedan seems to already be preparing a legal challenge for a potential disqualification.

Kentucky regulations spell out penalties for trainers and for owners following a drug positive, depending on the number and class of drug violations for the relevant licensee. The penalties for owners include disqualification and loss of purse, as well as a potential requirement for horses to undergo further examination or testing before returning to racing.

As explained in the Louisville Courier-Journal, there seems to be some debate about what will happen if a split sample comes back positive. Dr. Mary Scollay, former equine medical director for the Kentucky Horse Racing Commission, and Marc Guilfoil, current executive director for the commission, both point out that there is no “mitigating circumstance” language in the owner sanctions for a Class C positive. Stewards are given a range of possible suspensions and fines for trainers with the phrase “absent mitigating circumstances” at the end, meaning they can use discretion within those ranges depending on information they get from the trainer about how the drug became introduced to the horse — i.e., environmental contamination. There is no “mitigating circumstances” language at the end of the penalties outlined for owners in this circumstance.

Attorney Clark Brewster maintains however that the phrase “shall apply” when referring to the disqualification and loss of purse for owners is legally ambiguous. While lay people understand “shall” and “must” to be the same, Brewster points out that there is some variation in interpretation of the two words in legal settings. Brewster argues that stewards should take mitigating circumstances — like whether the drug was intended to advance performance — into account when they make their eventual decision.

Read more at the Louisville Courier-Journal

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THA’s Alan Foreman Joins All-Baffert Controversy Writers’ Room

Normally, the TDN Writers' Room podcast presented by Keeneland aims to touch on a wide variety of industry issues every week. But there was only one story worth discussing this week, so the writers broke down every angle of the explosive controversy surrounding Bob Baffert and the failed drug test of GI Kentucky Derby winner Medina Spirit. They also welcomed Thoroughbred Horsemen's Association Chairman and CEO and prominent industry lawyer Alan Foreman as the Green Group Guest of the Week to talk about what happens now for Baffert from a legal standpoint.

“I think it's important for people to understand that there are two layers here,” Foreman said about the fallout of this week. “This is a state regulatory matter and the regulation is done by the Kentucky Horse Racing Commission. What Churchill Downs did [banning Baffert from the entry box] was more of a public relations stand to protect the Kentucky Derby brand that they covet. Tracks have the common law right to exclude anyone they want, but when you're dealing with licensees, it isn't as broadly based as you would think it is. There's quite a body of law with respect to the exclusion of licensees and what should be appropriate circumstances. The question here legally would be if Bob Baffert and his team wanted to challenge it, whether Churchill Downs really has the right to do so under the circumstances. This is a routine medication violation. If they're going to ban Bob Baffert, do you ban every horseman who has some medication violation?”

Asked about the frequent public appearances by Baffert to talk about a situation that's still being litigated, particularly his revelation Tuesday that Medina Spirit was treated with a cream that contained betamethasone, Foreman said, “I don't know what their strategy is. I don't know if this is what Bob wanted to do or if he was under advice to do it. The information that came out [Tuesday] changes the whole landscape. The first thing that you do if you're a trainer and you're notified of a positive test, is ask your personnel and veterinarian, do we have betamethasone in the barn? You would know that fairly quickly, you wouldn't know it 48 to 96 hours after the fact. You certainly wouldn't go on television and say, 'I don't use the stuff. We don't have it in the barn. I don't know how it got there. It's everybody else's fault.' That's basic stuff. So the strategy makes no sense to me and I certainly wouldn't counsel my clients that way.”

Elsewhere on the show, which is also sponsored by West Point Thoroughbreds, the Minnesota Racehorse Engagement Project and new sponsor Legacy Bloodstock, the writers called out the decisions and behavior that led to the embarrassment this past week has brought racing, debated what can be done now and reacted to the decision to allow Medina Spirit's entry in the Preakness. Click here to watch the podcast; click here for the audio-only version.

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Show Us The Paper, Bob: Records To Back Up Baffert’s Story Remain A Matter Of Trust

The number of people inclined to nod along when Hall of Fame trainer Bob Baffert says, “Just trust me,” is getting smaller and smaller these days. First there was Justify, then Charlatan/Gamine, then Merneith, then Gamine again, and now Medina Spirit – five drug violations in the past year and six in recent memory. This time, Baffert told media on Sunday, he was getting out in front of the issue, not waiting for a split sample test came back positive before announcing that his horse had failed a post-race test. He has since told mainstream media that he didn't want to repeat his mistakes in the Justify case, where he and the California Horse Racing Board were widely criticized for keeping the colt's test for scopolamine a secret until the New York Times reported on it months later.

The advantage of being transparent about something like this is that you can control the narrative, and since the Kentucky Horse Racing Commission isn't permitted to discuss a positive before a split sample test and a ruling, Baffert and his legal team have arguably been able to do just that. Baffert has made quite the media tour since Sunday morning, appearing on CBS, Fox News, and elsewhere to tell his side of the story, which seemed to mostly amount to 'I don't know what happened but testing is too strict.'

When Baffert's public stance evolved from 'I didn't do it' to 'Ok, I did it, but it was a mistake,' there was ample opportunity to keep a strong public front. On Tuesday, a statement distributed via Baffert attorney Craig Robertson blamed the betamethasone positive on Otomax, an anti-fungal cream made for dogs which contains betamethasone. This, Robertson said, was used on dermatitis on Medina Spirit after the Santa Anita Derby daily until the day before the Kentucky Derby.

“As I have stated, my investigation is continuing and we do not know for sure if this ointment was the cause of the test results, or if the test results are even accurate, as they have yet to be confirmed by the split sample,” read Baffert's Tuesday statement. “However, again, I have been told that a finding of a small amount, such as 21 picograms, could be consistent with application of this type of ointment. I intend to continue to investigate and I will continue to be transparent.”

So, be transparent.

The beautiful thing about the administration of a prescription therapeutic drug in either California or Kentucky is that it should leave quite a paper trail. First, there would be the prescription itself, which would appear on the box the ointment container came in (the same box that lists betamethasone as an ingredient) or possibly the tube itself (which also lists the ointment's ingredients). The prescription would include a date, instructions for use, and the veterinarian's name. Then, administration of a prescription to a horse in California should trigger a daily treatment report to the California Horse Racing Board. Treatment of a Derby horse in Kentucky would also trigger a daily treatment report, given to the Kentucky Horse Racing Commission. The prescribing veterinarian would also have a record of dispensing the medication – probably more than once, as it comes in a small container intended for dogs – alongside a diagnosis and dates.

Unlike other types of records, veterinary records that are provided in the course of reporting to the state racing commissions do not become subject to public records requests. In general terms, veterinary records are owned by the owner or manager of the animal, not the veterinarian, clinic, or any third party. So Kentucky and California cannot release what records they have (or don't have) about this lengthy prescription treatment, but Baffert could. Likewise, he could authorize the release of his veterinarian's records. In fact, he was asked during Sunday's news conference whether he planned to release his records and his response was that he intended to release them to the Kentucky commission.

When this reporter asked whether there were treatment reports submitted to the CHRB for Otomax, Robertson responded with the following: “I do not know. As you can imagine I have had my hands full. What I do have are the vet records showing the treatment.”

When asked whether Baffert intended to provide evidence of the vet's prescription of Otomax, Robertson replied “We have those vet records and have provided them to Pimlico.”

While it's certainly understandable that Baffert doesn't want the general public, with its lack of veterinary knowledge, rifling through his horse's medical history, he's the one who started this.

When asked whether the prescribing veterinarian, who so far Baffert has declined to name, had a rationale for choosing Otomax as a treatment for skin disease over other treatments that don't contain betamethasone, Robertson said he didn't know.

A photo provided with Tuesday's statement showed an image of a dark bay horse's right hindquarter, dotted with areas of skin irritation characteristic of the dermatitis described by Baffert. What wasn't specified in the statement was the date the photo was taken; since it was provided as evidence of a condition the horse was treated for from around the April 3 Santa Anita Derby until the day before the May 1 Kentucky Derby, one may assume it was intended to show the condition as it appeared during that timeframe. However, metadata on the image indicates it was taken with an iPhone around 7 a.m. on May 11. If Baffert's veterinarian had been made available to the press and the public, it would be logical to ask why four weeks' worth of prescription treatment had apparently not resolved the issue, which was also visible in images and video of the horse taken at Pimlico Wednesday morning.

A follow-up question asking Robertson about the timing of the image was not answered.

As a reporter, I can appreciate any subject's attempts to be transparent – it's supposed to make my job easier. But true transparency, particularly from someone who hasn't always provided it, means more than just “trust me.”

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Raising The Bar? Hore’s Advisory Role With Baffert ‘Did Not Materialize As Intended’

In November of 2020, trainer Bob Baffert announced that he was retaining Dr. Michael Hore of Hagyard Equine Medical Institute to “add an additional layer of protection to ensure the well-being of horses in my care and rule compliance.”

Hore is based in Lexington, Ky., while Baffert's operation is based in Southern California. Hore is not licensed to practice veterinary medicine in the state of California. The state's database also contains data on expired/inactive licenses, and he does not appear to have ever had a veterinary license there. Veterinarians are permitted to consult on cases without being licensed in the state, but cannot do diagnostics or perform any treatment.

In the wake of this week's announcement that Baffert's trainee Medina Spirit tested positive for betamethasone after winning on the sport's biggest stage in the Kentucky Derby, Dr. Hore told bloodhorse.com that the role with Baffert did not materialize.

“Following some initial discussions with Bob and one of my colleagues last fall—and his announcement regarding new procedures to ensure no further medication issues—our role in those procedures did not materialize as intended, because of travel and other restrictions related to COVID-19. He is based in California, we are based in Kentucky,” Baffert's attorney wrote in an email to bloodhorse.com.

Backstretch traffic at Santa Anita has been restricted throughout the COVID-19 pandemic, including in November 2020, although licensed veterinarians have always been permitted access to see clients. Veterinarians requesting a racetrack veterinarian license must first have a state veterinary license.

Also in Baffert's fall announcement to “raise the bar and set the standard for equine safety and rule compliance,” the Hall of Fame trainer pledged to both increase “the training and awareness of all my employees when it comes to proper protocols,” and to increase his own “oversight and commitment to running a tight ship and being careful that protective measures are in place.”

Yet, on Tuesday, 48 hours after his initial press conference announcing the positive test, Baffert claimed that Medina Spirit's betamethasone positive may have stemmed from the use of a topical ointment called Otomax. Baffert claimed the ointment was prescribed by a veterinarian to treat a skin condition called dermatitis on Medina Spirit's hind end; betamethasone is listed on the Otomax label as a primary ingredient.

Baffert had been the subject of public criticism prior to this week's announcement about Medina Spirit's test, following a series of positive post-race tests for therapeutic drugs in his barn during 2020.

Baffert-trained Chalatan and Gamine both tested positive for lidocaine at Oaklawn Park on May 2, 2020, resulting in a 15-day suspension for the trainer and disqualification of both horses (Gamine from an allowance race and Charlatan from the G1 Arkansas Derby) – sanctions that were ultimately reversed by the Arkansas Racing Commission. Baffert was fined $5,000 instead.

Gamine then tested positive for betamethasone after a third-place finish in the G1 Kentucky Oaks on Sept. 4. She was disqualified and placed last and Baffert was fined $1,500. A fourth positive test came when Merneith was found to have dextrorphan in her system after finishing second in a July 25 allowance race at Del Mar. Baffert received a $2,500 fine for that violation.

Hore is a surgeon at Hagyard Equine Medical Institute, which is based in Lexington, Ky. According to Hagyard's website, he specializes in digital radiographs, sales work, lameness, and angular limb deformities and practices in Kentucky, Florida, Maryland, New York, and Europe. Hore is credited with being part of the team that shortlisted Charlatan, Authentic, and Justify for SF Bloodstock. He was also among the veterinarians who signed a settlement agreement with the Kentucky Board of Veterinary Examiners last year after self-reporting for misdating radiographs ahead of public auction.

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