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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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Justify, Hoppertunity Case Will Be Heard Before Stewards

The connections of Justify and Hoppertunity were unsuccessful in their attempt to obtain a temporary restraining order to stop the California Board of Stewards from holding a hearing regarding the disqualifications of those horses due to scopolamine positives in 2018, and the hearing will go forward as planned, according to a press release from Darrell Vienna, the attorney representing Mick Ruis.

Trainer Bob Baffert, and the owners and two jockeys who rode the undefeated 2018 Triple Crown winner Justify and the MGISW Hoppertunity, had filed a legal petition against the California Horse Racing Board (CHRB) Oct. 13, alleging that the CHRB’s recent decision to reopen hearings on two scopolamine positives from those horses in 2018 amounts to “arbitrary, capricious, and unlawful conduct” that purportedly targets Baffert and his clients unfairly while supposedly damaging the horses’ reputations as stallions.

“The Honorable James C. Chalfant denied the ex parte application of the Justify and Hoppertunity interests clearing the way for a hearing before the Board of Stewards on the potential disqualification of both horses,” read the press release from Vienna. “The court found that there was no legal basis stated in the moving papers which warranted stopping the Stewards’ hearing.”

Ruis is the owner and trainer of Bolt d’Oro, the runner-up in the 2018 Santa Anita Derby behind Justify. Ruis has sued the CHRB alleging that the initial dismissal of all seven cases of scopolamine positives led Ruis to suffer the loss of purse money when Justify was not disqualified and the purse was not redistributed.

Hoppertunity, also trained by Baffert, had a positive scopolamine test after the 2018 GIII Tokyo City Cup S at Santa Anita, two of seven such positives at the time that were dismissed as environmental contamination.

The petition, filed Tuesday in Los Angeles County Superior Court, sought a judgment, injunction, and “peremptory writ of mandate commanding Respondent CHRB to dismiss the Complaints filed against Petitioners and cancel all hearings on the matter.”

“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,” said Vienna.

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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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Justify, Hoppertunity Connections Seek Court Block of CHRB Scopolamine Re-Hearings

Trainer Bob Baffert, plus the owners and two jockeys who rode the undefeated 2018 Triple Crown winner Justify and the MGISW Hoppertunity, filed a legal petition against the California Horse Racing Board (CHRB) Oct. 13, alleging that the CHRB’s recent decision to reopen hearings on two scopolamine positives from those horses in 2018 amounts to “arbitrary, capricious, and unlawful conduct” that purportedly targets Baffert and his clients unfairly while supposedly damaging the horses’ reputations as stallions.

The petition, filed Tuesday in Los Angeles County Superior Court, seeks a judgment, injunction, and “peremptory writ of mandate commanding Respondent CHRB to dismiss the Complaints filed against Petitioners and cancel all hearings on the matter.”

The petitioners–Baffert, WinStar Farm LLC, China Horse Club, Head of Plains Partners LLC, Starlight Racing, Michael Pegram, Karl Watson, Paul Weitman, Mike Smith, and Flavien Prat–are also going after the CHRB for unspecified monetary damages, attorney fees, and court costs, plus “other, different, or further relief as the Court may deem just and proper,” according to the 26-page court filing.

“This action challenges the CHRB’s groundless decision to reopen a closed matter and conduct a retroactive hearing with an apparently foregone conclusion to disqualify and redistribute winnings from horse races that occurred two and a half years ago. When those races [the [GI] Santa Anita Derby and [GIII] Tokyo City Cup] were run in April 2018 and two horses (Justify and Hoppertunity, respectively) were declared the winners, the CHRB decided the very issue it is seeking to revisit now,” the court documents state.

“The CHRB has no legal or factual basis for reopening its prior final decision,” the filing continues. “As the CHRB knew when it decided this issue in 2018, both Justify and Hoppertunity tested positive for scopolamine just after their respective races in April 2018. But after a thorough investigation and deliberation, consistent with the well-established equine science and its very own governing statute and rules, the CHRB correctly decided that the positive results were due to naturally occurring contamination in the horses’ feed and therefore dismissed the matter. Now, after almost two and a half years, the CHRB has issued complaints and announced it intends to hold a hearing [Oct. 29] to consider retroactively disqualifying these two horses.”

The filing contends that “The CHRB’s attempted proceedings, however, ignore a critical element: the CHRB could not have disqualified either horse in 2018 and cannot do so now because scopolamine is a classified substance that, by law, does not permit disqualification. Further, the CHRB has no authority, or basis, to reopen this closed matter. Rather, the CHRB has admitted it has issued its complaints and is holding a hearing simply to dispose of a civil action brought against it by a race runner-up, and solely as a way to avoid further litigation and expense in that lawsuit.”

According to the Oct. 13 filing, “All racing jurisdictions have rules that govern the sport and the presence of medications and substances in post-race blood and urine tests. California is no different, and the April 2018 tests were taken pursuant to those rules. Specifically, California’s classification system delineates five classes of substances [and] four categories of penalties. [The more egregious and harmful] Class 1-3 substances correspond with penalty categories A and B, while Class 4-5 substances are associated with penalty categories C and D.”

“At the time of the 2018 Santa Anita Derby, just as it is today, the CHRB’s rules designated scopolamine as a Class 4, penalty C substance. Significantly, disqualification is not an authorized penalty for Class 4, penalty C substances. Plainly stated, disqualification premised on the presence of scopolamine was not a permissible option for the CHRB in April 2018 under its own rules [nor is it an option today].”

The filing continues: “There have been numerous incidents of jimson weed contaminating bales of hay, leading to what are called ‘clusters’ of horses testing positive for scopolamine when they unknowingly ingest contaminated feed. Fortunately, there is a proven scientific method for determining whether the presence of scopolamine in a horse is due to intentional administration or is the result of innocent contamination from hay. If the horse has ingested jimsonweed, blood tests of that horse will reveal the presence of atropine. On the other hand, if scopolamine has been intentionally administered, atropine will not be present.”

“Racing commissions routinely use the presence or absence of atropine in the blood as a determinative factor in deciding whether to pursue complaints against an owner or trainer.. Equally important, the amounts of scopolamine found in the blood of Justify and Hoppertunity..were small enough that they would have no pharmacological effect in a horse.”

The filing states that, “There were five other horses who tested positive for scopolamine during this time period. All seven horses were investigated by Dr. Rick Arthur, the CHRB’s Equine Medical Director, and Rick Baedeker, the CHRB’s Executive Director. Arthur and Baedeker determined that the cluster of scopolamine positives at Santa Anita in 2018 was the result of contaminated hay. They found jimson weed in hay that had been delivered to Santa Anita and the blood and urine samples of all the horses revealed the presence of atropine. The investigation and science were conclusive: this was a case of environmental contamination that had no effect whatsoever on all seven horses tested that day, nor the outcome of their respective races. Thus, Arthur and Baedeker jointly recommended to the Board of the CHRB that all seven cases be dismissed.”

“Arthur and Baedeker’s recommendation was presented to the Board of the CHRB, which voted unanimously to dismiss all seven cases. That decision was not only proper, it was the only one the CHRB could make under its own rules..In sum, the cases for the seven horses testing positive for scopolamine in April 2018..were all thoroughly and properly investigated and were

all dismissed. The science was not only overwhelming, it ‘mandated’ such a result.”

The filing further contends that a January 2020 lawsuit initiated against the CHRB by Mick Ruis, who owned and trained the 2018 Santa Anita Derby runner-up, Bolt d’Oro, is “the only reason the CHRB has decided to reopen the formally closed decisions with respect to Justify,” because the CHRB “agreed to do so as part of a private settlement.”

In his suit, Ruis alleged that the CHRB’s August 2018 vote to dismiss the case against Justify led Ruis to suffer “the loss of purse caused by the CHRB’s failing to disqualify Justify and re-distribute the purse for the positive test result.”

The Oct. 13 filing states that, “the CHRB is only attempting to reopen its 2018 decision regarding Hoppertunity because that horse too was trained by Bob Baffert” and that, “the CHRB agreed to file the [Aug. 25, 2020] complaints against Justify and Hoppertunity solely to avoid further litigation costs associated with its legal defense in the Ruis lawsuit and to placate the race runner-up.”

The Baffert, et al, filing states that as a result of the CHRB’s unlawful conduct, the petitioners have, “suffered harm, including damage caused to Justify’s and Hoppertunity’s reputations, as award-winning Thoroughbred horses.”

But the Oct. 13 court documents do not provide specific details about the exact nature of this alleged harm.

“Unless [the CHRB] is restrained and enjoined from reopening these actions that were previously and rightfully dismissed, Petitioners’ rights will continue to be violated, as they have no plain, speedy, or adequate remedy at law; injunctive relief is the only legal means available to protect their legal rights,” the filing concludes.

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