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Justify, Hoppertunity Disqualification Hearings Should Be Held, California Judge Rules

The connections of 2018 Triple Crown winner Justify and Grade 1 winner Hoppertunity on Thursday were thwarted in their attempt to stave off an Oct. 29 hearing before California Horse Racing Board stewards concerning possible disqualification from April 2018 victories by the two horses at Santa Anita Park because of failed drug tests.

Both horses tested positive for the banned substance scopolamine: Justify, after his win in the Grade 1 Santa Anita Derby; and Hoppertunity in the Grade 3 Tokyo City Cup.

Los Angeles Superior Court Judge James C. Chalfant denied an application for a temporary restraining order requested by attorneys for WinStar Farm, China Horse Club, Head of Plains Partners, and Starlight Racing, the owners of Justify, and Michael Pegram, Karl Watson and Paul Weitman, the owners of Hoppertunity. Trainer Bob Baffert and jockeys Mike Smith and Flavien Prat were also named as petitioners in the case.

Earlier this year, the CHRB settled a lawsuit filed by Mick Ruis, owner of Santa Anita Derby runner-up Bolt d'Oro, conditional on the stewards conducting a hearing into Justify's positive drug test. The case was not pursued in 2018 after CHRB members voted unanimously in closed-door executive session – upon the recommendation of equine medical director Dr. Rick Arthur and then-CHRB executive director Rick Baedekr – not to file complaints. Arthur and Baedeker had investigated the cases and concluded the positive tests were a result of hay contaminated with jimson weed.

Ruis filed suit after learning of the CHRB's actions from a 2019 report in the New York Times.

Attorneys for the connections of the two horses argued that the CHRB was violating government code by reopening a case more than two years after the fact. Attorneys for the state said the petitioners were premature in seeking judicial review because the cases had not yet gone through the administrative process (i.e., a stewards hearing).

“At this hearing, the parties will have the opportunity to present evidence and make argument,” the state said in its opposition to the restraining order. “After the hearing, the Board of Stewards will render a decision. The decision by the Board of Stewards could be in favor of Petitioners or could be against Petitioners. If Petitioners take issue with the decision by the Board of Stewards following the Oct. 29, 2020, hearing, they can file a petition for writ of mandate. … Instead of following the procedures set forth by California law, Petitioners want this court to prematurely intervene and short-circuit the administrative processes of the CHRB.”

Darrell Vienna, an attorney for Ruis, issued a statement after the ruling that stated: “We are pleased that Judge Chalfant saw through this flimsy attempt to delay or avoid a long overdue and proper treatment of the positive tests involving these two horses.”

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Mike Smith To CHRB: New Riding Crop Rule Putting Jockeys, Horses At Greater Risk

Hall of Fame jockey Mike Smith, co-chair of the Jockeys' Guild, has written a letter to California Horse Racing Board members on behalf of the Guild and California riders criticizing a restrictive riding crop rule that went into effect on Oct. 1 over concerns for the safety of horses and riders and the integrity of the sport.

The rule, CHRB 1688, restricts both the manner and frequency with which jockeys may use the riding crop. Under CHRB 1688:

The crop must be used in an underhanded position with the crop always at or below the shoulder level of the jockey.
A maximum of six strikes with hands off the reins is permitted during a race; not more than twice in succession.
There is not a limit on the number of times a jockey may strike a horse on the shoulder while both hands are on the reins, and “flagging” a horse is permitted.

Smith said the rule “to restrict the use of the riding crop to the underhand position … is completely against the technique that every jockey has been taught on the proper use of the riding crop. It is contrary to our instincts and techniques, which in turn is impacting our balance and reaction time. We strongly believe that regulation is extremely hazardous and has added an even greater risk and uncertainty to our profession.”

He also voiced the concerns of riders for racing integrity, saying, “In multiple races over the weekend, jockeys were limited in the encouragement they were able to give the horses, which in turn impacted the outcome of the race and jockeys were unable to maximize placing of the horses.”

Following is the full text of the Oct. 8 letter from Smith to members of the CHRB, a copy of which was obtained by the Paulick Report:

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Dear Members of the California Horse Racing Board

Please accept this letter on behalf of the Jockeys' Guild and all of the jockeys in California. I am writing to you, as well as copying Gov. Gavin Newsom, Sen. Bill Dodd, and Asm. Adam Gray, in yet another effort to express the concerns of the California jockeys regarding CHRB 1688 Use of the Riding Crop, which went into effect on October 1, 2020.

Since the consideration to the changes to the Use of the Riding Crop regulations were introduced, we have voiced various reasons for opposition, including our concerns about safety and the integrity of the sport. In the weeks leading up to the implementation, there were several meetings with the riders at Santa Anita, Golden Gate, and Los Alamitos, including both the Thoroughbred and Quarter Horse jockeys, in which we had discussions on how to move forward.

After the jockeys have attempted to comply with CHRB 1688 this weekend, our concerns have been reiterated and we strongly believe that more than one of us will suffer a serious injury, or even possibly death, from your new rule 1688, which has never been used in the United States, or anywhere else for that matter. In light of the fact that one of our fellow jockeys, Vinnie Bednar, was recently paralyzed in a racing accident at Los Alamitos, the risks are fresh in our minds. And now, you have implemented regulations, that many people, including jockeys, owners, and trainers, believe have created even more safety hazards. The reality is we are very alarmed about the lack of concern for our safety and well-being. Furthermore, not only do we have a concern for our own welfare, but also have grave concerns about the risks being created for the horses.

The CHRB stated the intent is to improve the safety and welfare of the horses with the restrictions on the use of the riding crop. However, as Senator Dodd stated regarding his recently passed racing reform legislation in California, “the goal is to improve the safety of HORSES AND JOCKEYS.”

Unfortunately, historically jockeys have not had a voice and have been considered a lower aspect of racing, both socioeconomically and politically, often times due to race and lack of education. With regards to the Use of the Riding Crop in California it seems this has continued to be the case. We have attempted to participate in the rule making process and provide input based on our professional knowledge and experience. However, for whatever reason, our concerns were not given credence. Even though, the reality is, we are the people who are risking our lives, balancing on the balls of our feet, in a very narrow stirrup, going 35-50 miles per hour on a 1,200 pound horse, surrounded by other jockeys who are doing the same thing.

To restrict the use of the riding crop to the underhand position, as you have currently imposed, is completely against the technique that every jockey has been taught on the proper use of the riding crop. It is contrary to our instincts and techniques, which in turn is impacting our balance and reaction time. We strongly believe that regulation is extremely hazardous and has added an even greater risk and uncertainty to our profession.

Furthermore, to change to specifications of the actual crops we are using, adds to the difficulty of the regulation that is being imposed. The jockeys feel that the use current cushioned riding crop is safer for the equine athlete and does not compromise the horse's welfare. We were actively involved in the refinements and the adoption of the current riding crop to reduce the impact to the equine athlete. When the current cushioned riding crop was introduced, it was strongly encouraged that the horses be subject to inspection by a veterinarian, either regulatory or official, looking for cuts, welts, or bruises on the skin, with any adverse finding being reported to the Stewards. Over the past ten years, when the approved cushioned riding crops were used in the appropriate manner, the welts and cuts have almost been completely eliminated. With that being said, we are supportive of any improvements that can be made to the existing riding crop to create an even more humane crop.

However, any rule making on the composition of the crop must be done in a thoughtful manner after research and input and considerations from the jockeys.

In addition to the increased dangers, there has also been a serious impact on the integrity and outcome of the races. In multiple races over the weekend, jockeys were limited in the encouragement they were able to give the horses, which in turn impacted the outcome of the race and jockeys were unable to maximize placing of the horses. The owners, along with the betting public, both of whom are the driving force behind our sport, were not afforded every possible opportunity maximize return on their investment.

Given the penalties and perils you have created, you are imposing great pressures on the jockeys, to the extent that some are considering leaving California to ride in jurisdictions which are still allowing for reasonable and responsible use of the riding crop. My home, along with several other jockeys, many of whom are Latino, is in California. We do not want to be forced to leave. However, the fear of grave injury and the unreasonable penalties are making many of us reconsider continuing to ride in California.

As the Guild and the jockeys have continued to say the ultimate goal is to establish a standard that is in the best interest of the welfare of the horse, as well as the industry as a whole, including those whose lives are at stake. However, we believe that the new CHRB rule, as adopted, is actually unsafe and will be detrimental to our industry. As such, we are pleading and implore you to reconsider the changes that have been rushed through without thorough consideration of the dangerous implications you have created for us, as well as the horses.

Sincerely,

Mike E. Smith

Co-Chair, Jockeys' Guild

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Connections Of Justify, Hoppertunity Seek To Prevent CHRB From Conducting Hearings Into 2018 Scopolamine Positives

The owners of Justify and Hoppertunity, along with trainer Bob Baffert and jockeys Mike Smith and Flavien Prat, have filed filed legal action in Los Angeles Superior Court to prevent the California Horse Racing Board from conducting Oct. 29 disqualification hearings into April 2018 victories by Justify in the Santa Anita Derby and Hoppertunity in the Tokyo City Cup.

The writ of mandate, filed on Oct. 13, claims Aug. 25, 2020, actions by the CHRB to reopen the cases are “void, arbitrary, capricious, unconstitutional, beyond the power of the CHRB, and a prejudicial abuse of discretion.” It alleges the CHRB has violated California Code of Regulations and Government Code as well as the due process rights of the petitioners under the U.S. Constitution.

Justify and Hoppertunity, along with five other unnamed horses, tested positive for scopolamine in 2018. According to the legal filing, the Justify and Hoppertunity cases were investigated by the CHRB's equine medical director, Dr. Rick Arthur, and then-CHRB executive director Rick Baedeker. Both determined the “cluster” of scopolamine positives at Santa Anita in 2018 resulted from hay contaminated with jimson weed, proof of which, the writ of mandate states, is that all horses also indicated the presence of atropine, which it states is a “definitive marker of environmental contamination.”

Arthur and Baedeker recommended to the CHRB members in closed-door executive session that all seven scopolamine cases be dismissed, and the board in place at the time unanimously voted to support that recommendation, according to the action filed Oct. 13. The CHRB has several new members who were not on the regulatory body in 2018.

It wasn't until a September 2019 report in the New York Times that the positive drug tests and decision not to conduct stewards hearings were revealed. Several months later, Mick Ruis, owner of Santa Anita Derby runner-up Bolt d'Oro, filed suit against the CHRB demanding the case against Justify be reopened. Ruis stood to gain $400,000 in purse money (the difference between $600,000 for first and $200,000 for second) and other possible gains if Bolt d'Oro were declared winner of the Grade 1 race.

The Santa Anita Derby win by Justify in his stakes debut earned the Scat Daddy colt 100 qualifying points for the Kentucky Derby. He went on to win the Kentucky Derby, Preakness and Belmont Stakes, then retired to stud undefeated in six starts after being sold to Coolmore Stud for a reported $60 million.

As part of a settlement agreement with Ruis, the CHRB said it would file a complaint against the owners of Justify and conduct a purse disqualification hearing. The CHRB also filed a complaint against the owners of Hoppertunity, though not against the other five unnamed horses testing positive for scopolamine.

The owners of Justify at the time were WinStar Farm LLC, China Horse Club, Head of Plains Partners LLC and Starlight Racing. The owners of Hoppertunity were Michael Pegram, Karl Watson and Paul Weitman.

Attorneys for he petitioners contend scopolamine was – at the time of the April 2018 victories by Justify and Hoppertunity – a Class 4 drug with a C penalty classification under Association of Racing Commissioner guidelines. As such, they contend, a positive test for scopolamine would not trigger a disqualification.

They also contend the CHRB did not act in a timely manner in reopening the cases.

The legal action accuses the CHRB of violating its own rules and engaging in “unfair, arbitrary and capricious conduct. Petitioners have been intentionally treated differently from others similarly situated and there is no rational basis for he difference in treatment.”

As a result of the CHRB's actions, the writ of mandate alleges, the connections of Justify and Hoppertunity “have suffered damages, including in the form of reputational harm.”

The petitioners are seeking a writ of mandate from the court ordering the CHRB to dismiss the complaints and cancel all hearings related to Justify and Hoppertunity's positive tests. They are also seeking unspecified damages, along with attorneys' fees and court costs.

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Appeals Court Overturns Fipke’s 2017 BC Double Jockey Ruling

Nearly three years ago, the Johnny Velazquez-ridden Forever Unbridled (Unbridled’s Song) produced a performance in the $2-million GI Breeders’ Cup Distaff at Del Mar resounding enough to catapult her toward Champion Older Dirt Female honors at the subsequent Eclipse Awards.

The sweet taste of victory had been somewhat soured for owner Charles Fipke, however, due to a prior California Horse Racing Board (CHRB) stewards double jockey fee ruling which required him to pay Joel Rosario $100,000 as a result of the victory.

In the race entries, Rosario had been named Forever Unbridled’s intended rider. But because of what Fipke deemed a poor ride on one of his horses–among other issues with the jockey, according to court documents–Rosario was removed prior to the draw and Velazquez was named Forever Unbridled’s rider instead.

A Los Angeles County Superior Court judge upheld that ruling, but, on Monday, it was reversed in a 19-page California 2nd District Court of Appeals ruling.

“They exceeded their authority, even though they’ve been doing it for a long time,” said Darrell Vienna, who represented Fipke, of the CHRB stewards double jockey fee decision.

Vienna said that “scores” of prior double jockey fee rulings are usually for much less significant races, and typically result in a nominal fine of between $500 to $1,000.

“That’s why Mr. Fipke wanted to go forward,” said Vienna. “He wasn’t just fighting for himself, but he was trying to give the owners some understanding of what their obligations, and the limits of those obligations, were.”

As a result of the appeals court ruling, the CHRB is ordered to return those costs to Fipke, a noted diamond explorer.

CHRB spokesperson Mike Marten said that the board has no comment on the ruling.

In a nutshell, the case hinged around language in section 19500 of the CHRB rules, which delineates when jockeys are entitled to their riding fees and/or their mount fees if they’re removed from an intended ride.

“Although section 19500 grants CHRB considerable discretion to determine the circumstances under which a jockey removed from a mount is entitled to a riding fee, it imposes one implicit condition on the exercise of that discretion: the removal must occur after ‘scratch time,'” according to the appeals court decision, filed Monday.

“Had the Legislature not intended to impose such a condition, it could have provided a single direction to CHRB to establish the circumstances under which a jockey is entitled to receive a riding fee and/or a mount fee when removed from a mount,” the decision continued.

“The Legislature instead chose to direct CHRB to separately address situations where a jockey is removed before and after scratch time; only in the latter circumstance did it specify the jockey might be entitled to a riding fee. The clear implication of this decision is that the Legislature intended jockeys removed from their mounts prior to scratch time would not be entitled to riding fees.”

The CHRB argued that the statute is “irrelevant because it concerns jockey compensation, whereas here, the stewards awarded the double jockey fee as a penalty for Fipke’s misconduct,” according to the appeals court ruling.

During the prior superior court hearing, however, the CHRB had argued that the double jockey fee was “not a penalty” to punish Fipke, but rather an award to Rosario to “compensate him” for losing the mount.

“We agree with CHRB’s initial position, as do Rosario and Fipke. For the reasons we discuss below, the double jockey fee award was not a penalty,” Monday’s appeals court decision states.

In a text message Monday, Ron Anderson, Rosario’s agent, wrote that neither he nor Rosario had a comment about the decision.

In a press release Monday, attorney Carlo Fisco, who also represented Fipke, wrote: “The law appeared to be clearly and straightforwardly in Mr. Fipke’s favor. Therefore Mr. Fipke must be commended for staying the course in seeking a fair and just decision. Owners now have a level of protection going forward and the industry also stands to gain from the clarification supplied by the appellate court.”

In the release, Fipke stated: “I pursued this case because I believe that horse owners have the right to make decisions regarding their horses and ensure that I and other horse owners are neither denied that right nor subjected to arbitrary and unfair sanctions for exercising that right.”

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