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It Ain’t Over Yet: Bolt D’Oro Connections File Appeal In Justify Scopolamine Case

Just eight days after the California Horse Racing Board decided it would not disqualify Triple Crown winner Justify from his win in the 2018 Santa Anita Derby due to a scopolamine positive, connections of Bolt d'Oro, the runner-up in that race, have filed an official appeal to overturn that decision. According to the Thoroughbred Daily News, CHRB executive director Scott Chaney revealed the appeal at the outset of the board's Thursday meeting, and indicated that the appeal would be considered during a closed-door session on Jan. 21.

“The board of stewards at Santa Anita issued a [Dec. 9] decision in which they concluded that a disqualification was not appropriate,” Chaney said during the CHRB meeting. “I made the decision not to appeal that ruling. The board has since received a request to appeal and overturn that decision from the connections of the second-place finisher in the race in question, Bolt d'Oro. The board will decide whether to entertain that request during the executive session at the January board meeting.”

The CHRB initially faced public outcry when a New York Times report published in September of 2018 revealed that post-race samples from both Justify and his Bob Baffert-trained stablemate Hoppertunity, winner of the 2018 Tokyo City Cup, contained scopolamine. Prior to its publication, the CHRB made the decision in a closed-doors executive session during the summer of 2018 not to pursue disciplinary action or disqualify horses after a cluster of positive tests for scopolamine across multiple barns, which CHRB staff determined was a result of exposure to jimsonweed in hay.

In January of 2020, Bolt d'Oro's owner Mick Ruis filed a petition in Los Angeles County Superior Court asking for a writ ordering the CHRB to set aside its decision to dismiss Santa Anita Derby winner Justify's positive test in the Santa Anita Derby and to order disqualification of Justify with a redistribution of the purse.

The CHRB's settlement of that civil suit included an agreement to file a complaint seeking disqualification of Justify from the 2018 Santa Anita Derby. Connections of Justify and Hoppertunity subsequently filed suit in Los Angeles Superior Court seeking a temporary restraining order to prevent the stewards from hearing the case. The application for that restraining order was denied.

The hearing was held on Oct. 29, 2020, and the CHRB handed down its decision to dismiss the complaint on Dec. 9.

Now, another closed-door session of the CHRB will determine whether Ruis' appeal will be considered.

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View From The Eighth Pole: Veering Off Into La-La Land

I seriously doubt if trainer Bob Baffert or anyone in his stable knowingly gave scopolamine to Justify prior to his victory in the Grade 1 Santa Anita Derby on April 7, 2018. But the drug showed up above the threshold limit in post-race testing for both the eventual Triple Crown winner and for Hoppertunity, another Baffert runner, who won the G3 Tokyo City Cup the following day at the Arcadia, Calif., track.

Scopolamine has found its way into California hay supplies via jimson weed, so it's not unreasonable to conclude the positive test was a result of environmental contamination. It's also unlikely that the drug's presence at a low yet impermissible level had any impact on performance.

But rules are rules.

According to California Horse Racing Board rule 1859.5 (Disqualification Upon Positive Test Finding), a positive test of drugs in classes 1, 2 or 3 (as defined by the CHRB) “shall require disqualification of the horse from the race in which it participated and forfeiture of any purse … regardless of culpability for the condition of the horse.”

In April 2018, scopolamine was a Class 3 drug under CHRB rules.

CHRB members, meeting in executive session on Aug. 23, 2018, circumvented those rules by voting to not pursue the matter, acceding to the recommendations of the CHRB's equine medical director, Dr. Rick Arthur, and the board's then-executive director, Rick Baedeker.

There is an old expression that “we don't know what we don't know.” In this case, we don't know how many previous times the board took such actions, stopping an alleged medication violation before it reached the stewards for a hearing. We do know the CHRB has prosecuted numerous cases of positive drug tests that any rational person would assume resulted from environmental contamination.

So what was different about this case?

For starters, by the time this came before the CHRB in August 2018, Justify had a) won the Triple Crown, b) had his breeding rights sold for a record $75 million, and c) been retired from racing. He was also trained by a Hall of Famer who had become the “face” of the sport.

Additionally, there was a can of worms labeled “Derby Points” that some might try to open if Justify was disqualified from the Santa Anita Derby, a race that gave the son of Scat Daddy the points needed to qualify for the Kentucky Derby field.

So the CHRB voted behind closed doors to end the investigation and successfully tamped down what could have been an embarrassing situation – until a September 2019 report by Joe Drape in the New York Times exposed what had happened.

There's another old expression that “it's not the crime, it's the coverup.” Scopolamine positives have been called before in California. Trainers were not sanctioned but their horses disqualified. No one likes when that happens, but it's a matter of following the rules. Maybe the rules need to be changed to accommodate environmental contaminations, but until that happens it isn't right for regulators to circumvent the rules they don't like.

The New York Times article hit as California racing was trying to recover from the high-profile equine fatality spike at Santa Anita earlier in the year that thrust the sport in the national spotlight in a most unflattering way. The handling of the Justify case only poured gasoline onto the regulatory fire.

The controversies riled the office of Gov. Gavin Newsom and dominoes started falling at the CHRB. Chuck Winner had already stepped down as board chairman when the Justify story broke. Vice chair Madeline Auerbach resigned from the board when she was passed over to chair the organization. Executive director Baedeker announced that he was retiring and other staff positions changed. New appointees came from outside the industry and without direct investment in racing or conflicts of interest.

Mick Ruis, who owned Santa Anita Derby runner-up Bolt d'Oro, sued the CHRB in January 2020, claiming he was entitled to the $600,000 first-place money from the race. In July, Ruis reached an agreement to settle the lawsuit when the CHRB said it would file a complaint to conduct a purse disqualification hearing on Justify. That hearing, which also included a complaint filed on Hoppertunity's positive test, was conducted on Oct. 29.

Here's where things start veering off into La-La Land.

The three stewards, John Herbuveaux, Kim Sawyer and Ron Church, did their due diligence sifting through the evidence and testimony. They put together a lengthy findings of fact and timeline, including making note that scopolamine changed from a Class 3 drug to Class 4 months after the Santa Anita Derby and Tokyo City Cup were run. The stewards did all the things you would expect them to do when conducting a hearing of this type and then making a determination.

Then they took the ultimate copout. No matter what the evidence was, no matter what the rules stated, they dismissed the complaint “because the CHRB has already ruled on this matter, in executive session, at the Aug. 23, 2018, meeting.”

Are you kidding me?

Unless this was some kind of carefully orchestrated kabuki theater involving CHRB members, staff and stewards to go through the motions of a hearing in order to satisfy the terms of the settlement agreement with Ruis – which seems highly unlikely – the final order by the stewards is mind-boggling.

If the stewards felt as though the matter was dismissed in August 2018, why did they go to the trouble of conducting a hearing? Couldn't they have sought clarification from legal counsel at the CHRB as to whether or not the matter was settled?

The order by the stewards may not be the final word. Attorney Darrell Vienna, representing Ruis, pointed out that California's Business and Professions Code, section 19517, states the CHRB “may overrule any steward's decision other than a decision to disqualify a horse due to a foul or a riding or driving infraction in a race, if a preponderance of the evidence indicates any of the following:

“1) The steward mistakenly interpreted the law.

“2) New evidence of a convincing nature is produced

“3) The best interests of racing and the state may be better served.

“…Furthermore, any decision pertaining to the distribution of purses may be changed only if a claim is made in writing to the board by one of the involved owners or trainers, and a preponderance of the evidence clearly indicates to the board that one or more of the grounds for protest, as outlined in regulations adopted by the board, has been substantiated.”

Within hours of the decision by the stewards to dismiss the complaint, Vienna filed a claim with the board on behalf of Ruis, asking for the CHRB to overrule the stewards.

The ball is back in the CHRB's court, but these are not the same CHRB members who opted to bury this matter in August 2018.

That's my view from the eighth pole.

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No Change In 2018 Santa Anita Derby Results As Stewards Dismiss Complaint In Justify/Hoppertunity Case

Justify's win in the 2018 Santa Anita Derby, and that of stablemate Hoppertunity in the 2018 Tokyo City Cup, will stand. The Santa Anita board of stewards voted Wednesday to dismiss a California Horse Racing Board (CHRB) complaint into the results of both races without any change in the final order of finish. The Board brought the complaint as part of a settlement agreement in a civil suit from Ruis Racing, which owned Bolt d'Oro, runner-up to Bob Baffert-trained Justify in the Santa Anita Derby.

The CHRB faced public outcry when a New York Times report revealed that post-race samples from both horses contained scopolamine, but that the board voted in a secretive, closed-door meeting not to pursue action against trainer Bob Baffert. CHRB equine medical director Dr. Rick Arthur advised the board that several other horses also showed levels of scopolamine in their systems around the same time, which led him to believe the tests were the result of environmental contamination. Scopolamine can sometimes be found as a result of exposure to jimson weed, which grows in California and may sometimes end up in hay or bedding.

“Even if this panel were to disagree with the CHRB's decision to dismiss these matters or the way the CHRB handled the situation it cannot be argued that the CHRB lacked the authority to do so,” read the stewards' decision. “The law specifically allows such actions to take place and the CHRB followed the law.”

Stewards heard evidence from the CHRB and connections of both horses on Oct. 29. The horses' connections went to court in an attempt to block a stewards' hearing on the 2020 CHRB complaint but were unsuccessful.

The complaint brought this year after the Ruis civil suit focused only on whether Justify and Hoppertunity should be disqualified. It was not designed to impose sanctions on Baffert or any other individual.

In a written explanation, the stewards said their decision came down to the timing of changes to the classification of scopolamine. At the time of the races, scopolamine was a Class 3 drug by California rule, which would have required automatic disqualification of a horse regardless of the reason it was present in a post-race sample. However, by the time of the closed meeting for the board to discuss the Justify finding, the Association of Racing Commissioners International (ARCI) had changed the classification of the substance to a Class 4. The CHRB voted on in a regular, open meeting held on Aug. 23, 2018 to adopt an amendment to its drug rules which put them in line with ARCI guidelines — including, among other things, changing scopolamine from a Class 3 to a Class 4. The presence of Class 4 or 5 substances in horses post-race does not include automatic disqualification as a penalty.

It was in the closed-door executive session portion of that same Aug. 23 meeting that the board heard information about the scopolamine positives, including that of Justify, and voted to dismiss the whole thing without filing a complaint or referring the matter to the stewards for a hearing. CHRB rules at the time permitted the board to handle the case this way, with no public disclosure.

Wednesday's stewards' decision acknowledges that Arthur warned the board during that executive session “there might be a perceived lack of transparency should the CHRB fail to go public with the decision and that it would probably not remain a secret.”

The decision went on to question how the outcome may have been different had it gone through the normal channels for a post-race finding and done so more quickly.

“It is the stewards' opinion that had this board of stewards heard the Justify and Hoppertunity complaints prior to Aug. 23, 2018, both horses would have been disqualified.”

See the full stewards' decision here.

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Santa Anita Stewards Dismiss Complaints Against Justify, Hoppertunity

The latest development in a long, tumultuous and litigious journey saw the California Board of Stewards dismissing complaints filed by the current California Horse Racing Board (CHRB) regarding the scopolamine positives incurred by Justify (Scat Daddy) and Hoppertunity (Any Given Saturday) following their runs in the 2018 GI Santa Anita Derby and the GIII Tokyo City Cup S. respectively.

The CHRB filed the complaint as part of a legal settlement with trainer Mick Ruis, owner of Santa Anita Derby runner-up Bolt d’Oro (Medaglia d’Oro).

According to attorney Darrell Vienna, who represents Ruis, he filed a claim Thursday evening with the CHRB requesting that the board overturn the steward’s decision. The claim, he said, concerns a statute in the state’s Business and Professions Code.

The decision was issued Thursday evening following an Oct. 29 hearing on the matter. A TDN report on the hearing can be read here.

“I’m happy with the decision—mostly importantly for Justify. He is a great horse and deserves his undefeated record,” said Bob Baffert, trainer of both horses, in response to the decision.

In a 10-page ruling, the stewards framed the decision as one that came down to the following: “Whether, at the times of the races, Scopolamine was a class 3 or a class 4 prohibited substance as classified by the CHRB.”

Boiled down to its component parts, the decision circled two main CHRB rules: rule 1843.2, regarding drug classifications; and rule 1859.5, regarding disqualifications following a positive test.

The evidence as to what class of substance Scopolamine was listed in April, 2018, when the two horses competed, was “conflicted,” the stewards admitted.

“At the time of the races in April of 2018 the CHRB rules considered Scopolamine a class 3 prohibited substance,” the decision states. In California, class 3 drug positives trigger automatic disqualification of horses, regardless of trainer intent or culpability.

The CHRB, however, based its rules on the Association of Racing Commissioners International (ARCI) guidelines. The ARCI Uniform Guidelines for Foreign Substances was changed in December of 2016 to list Scopolamine as a class 4 substance.

“If this change in the ARCI Guidelines were to prevail in the interpretation of the 2018 version of rule 1843.2, then the disqualification of the two horses would not be necessary as the prohibited substance would not fall into a class 1-3 category,” the stewards’ decision states.

The slow-moving wheels of California administrative law, however, meant that the CHRB hadn’t formally adopted ARCI’s guidelines at the time of the two races.

At a CHRB board meeting on Aug. 23, 2018, the CHRB finally voted to adopt a rule amendment which formally changed Scopolamine from a class 3 to a class 4 prohibited drug, which wouldn’t require disqualification.

The CHRB, however, must formally adopt a rule change to 1843.2 before any changes in drug substances become effective, the stewards’ decision states. As such, “It is the Stewards’ opinion that had this Board of Stewards heard the Justify and Hoppertunity complaints prior to Aug. 23, 2018, both horses would have been disqualified,” the decision states.

Crucially at that same meeting on Aug. 23, however, the attending commissioners voted in executive session not to move forward with charges in the Justify matter, heeding the advice of former CHRB executive director Rick Baedeker and Rick Arthur, CHRB equine medical director.

For one, the CHRB knew at that time that the ARCI had changed its classification guidelines to reflect that Scopolamine was now a class 4 prohibited substance, the stewards’ decision states.

Secondly, “Dr. Rick Arthur was of the opinion that the Scopolamine found in Justify and Hoppertunity, as well as five other horses tested in April and May 2018, was the result of environmental contamination and that the matters should be dismissed. He believed it was the right thing to do,” the decision states.

Furthermore, “Testimony by Dr. Arthur indicated that he felt the change in the ARCI Guideline Classifications for Scopolamine from a class 3 to a class 4 in December of 2016 was sufficient enough for him to consider the rule amended because the rule changing process in California is cumbersome and inefficient,” the stewards’ decision adds.

“Even if this panel were to disagree with the CHRB’s decision to dismiss these matters or the way the CHRB handled the situation, it cannot be argued that the CHRB lacked the authority to do so,” the decision states. “The law specifically allows such actions to take place and the CHRB followed the law.”

Following the law the CHRB may have, but the lack of transparency with which the whole matter was handled has eroded public trust in the board, as Arthur feared at the now infamous executive session in August of 2018.

That day, Arthur warned of a perceived lack of transparency should the CHRB fail to go public with the decision, the stewards write. A little more than a year later, the New York Times published its explosive story which confirmed Arthur’s fears as it pulled back the curtains on the board’s inner workings.

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