craig robertson | Horse Racing Free Tips

Lawyers Available for HISA Covered Person Pro Bono Program

A trio of law firms will now be available to provide pro-bono legal representation to eligible recipients under the Horseracing Integrity and Safety Authority (HISA)'s newly established program. The program, open to covered persons who fall below a certain income threshold and are alleged to have violated HISA's Anti-Doping and Medication Control (ADMC) Program, will match recipients with volunteer attorneys who have agreed to provide legal services without any expectation of compensation.

The participating lawyers include Howard Jacobs, Jackson Kelly's Equine Group, and Wyatt Tarrant & Combs, LLP.

“We are pleased to participate in HISA's Covered Person Pro Bono Program, so that those who truly cannot afford a lawyer can have access to the same depth of experience and zealous representation that we provide to all of our non pro bono clients,” said Howard Jacobs, international sports law attorney specializing in disciplinary cases involving anti-doping and other disputes. “As a result of HISA's Covered Person Pro Bono Program, we hope that no covered person will feel that they simply cannot afford to defend themselves against a potentially life-changing charge.”

Jay Ingle, Chair of Jackson Kelly's Equine Group, said, “Jackson Kelly is always glad to help support the industries we serve. We quickly said yes when asked to participate in this program and donate our legal services and expertise, and hope that our contributions will help the sport and the horsemen and women in it.”

Craig Robertson, Partner-In-Charge, Lexington Office of Wyatt Tarrant & Combs, LLP, said, “The Wyatt firm is honored to be part of the HISA Covered Person Pro Bono Program to support those in need of legal assistance and to help promote the health and well-being of Thoroughbred racing and the equine industry as a whole.”

If the Horseracing Integrity and Welfare Unit (HIWU) has alleged that a covered person committed an ADMC Rule Violation, and the covered person has an annual household adjusted gross income of $75,000 or less and no significant liquid assets, the covered person will be eligible for free legal services from a volunteer attorney and limited reimbursement of out-of-pocket expenses incurred by the volunteer attorney.

“I am incredibly proud to be launching this free legal services initiative, the first of its kind in American sport,” said HISA CEO Lisa Lazarus. “Providing all Covered Persons with the tools to properly defend themselves in these cases is critical to ensuring integrity in our ADMC program adjudication procedures. We don't want the cost of legal services to ever be a barrier to pursuing a rigorous defense. I'm grateful to the reputable law firms and experienced attorneys who have already agreed to participate, and I look forward to expanding their ranks.”

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Baffert Returns to Stand for Sixth and Final DQ Appeal Session

Just a few days short of exactly two years after her third-place finish and eventual disqualification in the 2020 GI Kentucky Oaks, Gamine (Into Mischief) was brought to the forefront once again when Hall of Fame trainer Bob Baffert made his second appearance on the witness stand during the final session of the Kentucky Horse Racing Commission's appeal hearing.

Baffert originally filed the appeal that led to this six-day hearing to clear from his record a 90-day suspension that he has already served and to also reverse Medina Spirit (Protonico)'s disqualification from the 2021 GI Kentucky Derby.

While Baffert was present in the Frankfort, Kentucky court when he first testified on Monday, Aug. 22, he returned to the stand virtually on Tuesday.

Baffert's attorney Craig Robertson began his questioning of Baffert by tackling Gamine's Kentucky Oaks where in her post-race testing, she tested positive for betamethasone–the same corticosteroid that led to Medina Spirit's disqualification from the 2021 Kentucky Derby eight months later. As has been articulated already during the hearing, Baffert explained that Gamine was administered betamethasone via intra-articular injection 18 days before the race, which was outside of the 14-day suggested withdrawal time.

Robertson asked Baffert about his initial reaction upon learning of Gamine's positive test.

“I told my veterinarians at Santa Anita that I do not want the use of betamethasone in my barn,” the trainer said. “They were all aware that we would not inject these horses with betamethasone…I told them the science isn't right. Gamine should never have gotten in trouble…I didn't want any issues and we still got in trouble.”

Later on during the testimony, Robertson presented a similar question when he asked Baffert what his reaction was upon learning of Medina Spirit's positive test for betamethasone.

“It hit me so hard,” Baffert said. “It was chaos. I knew when I got that call that my whole life was going to change that day. I immediately called my veterinarian Vince Baker…to find out what happened. He explained to me that there was no scientific way, that [Medina Spirit] did not get injected with betamethasone.”

Later asked how he has been affected by the events that have transpired since Medina Spirit's positive test was first announced, Baffert said, “It's been tough on everyone because we felt that we didn't break any rules, yet the media was being hard on us. They did a lot of big pieces and used the word 'doping' and all that.”

Robertson's questioning of Baffert also covered the overturned ruling in Arkansas with Gamine and Charlatan, the presentation of a photo of Medina Spirit's skin rash that Baffert said led to the administration of the topical ointment Otomax, and also got into the details of how Baffert was informed of the news that Medina Spirit had tested positive for betamethasone and the events that followed.

When it came time for Jennifer Wolsing, the general counsel for the KHRC, to cross-examine Baffert, Wolsing turned the conversation back to Gamine. She first brought up a point she had made during Baffert's first testimony last week that while the suggested withdrawal time of 14 days for a betamethasone administration is in the case of a single injection, Gamine received injections of betamethasone in both hocks prior to her Kentucky Oaks performance.

“I rely on my veterinarians and I know he treated her 18 days out,” Baffert said in response.

Wolsing then referenced Baffert's previous statement of discontinuing the use of betamethasone in his barn after Gamine's positive. She read a portion of the drug label for Otomax, which included the corticosteroid betamethasone valerate.

“I have to rely on my veterinarians,” Baffert said again. “This horse had a skin rash that was getting ready to get out of control and they jumped on it right away.”

At the close of her cross-examination, Wolsing noted that Baffert won the Los Alamitos Derby with High Connection (Connect) on July 9, 2022 immediately after serving the 90-day suspension.

“You did return and you returned triumphantly,” Wolsing said. “You can't say you're not doing extremely well right now.”

“I lost some really nice horses,” Baffert replied.

Also during Tuesday's hearing, Amr Zedan, founder of Zedan Racing Stable which campaigned Medina Spirit, took to the witness stand virtually from Jordan.

Craig Robertson asked Zedan about his background, how he got involved in U.S. racing and his relationship with Baffert. When asked if he has found Baffert to ever be untruthful or evasive, Zedan was quick to answer.

“To the contrary,” he explained. “And thank you for asking that question because everyone knows that I have a friendship with Mr. Baffert and the fact that I have a friendship is a result of all the good he has done for me and my family since day one…People confuse the person with the persona. People have stereotypes [in differentiating] the persona–with him being the face of the sport, which he actually is-from the person. The person is someone that is outstanding with his family and his friends.”

During his cross-examination by KHRC attorney Luke Morgan, Zedan took an opportunity to defend his trainer and said, “There's no upside for anyone here. The sport we all love has been tarnished. Bob Baffert has served his punishment and has been humiliated. His family's reputation has been dragged through the gutter because of all of this…And frankly speaking, Medina [Spirit] has proven to be the best horse in his crop. He's beaten the horses that competed against him over and over again. The horse, for God's sakes, died. Everyone has been punished. Let's just not punish the horse any further. That's all I ask.”

Tuesday's session concluded with closing arguments from both sides.

Brewster spoke first and opened with a list of 16 'Admitted Facts' that he said he believed all were without genuine dispute. Among them, he explained that betamethasone was ruled by the KHRC as a Class C medication on the basis of it being an intra-articular injection and said the KHRC was not presented with any study or basis for a decision to enact a rule related to a topical treatment that contained betamethasone valerate as a component.

“What we have here is an agency that has made no rule, has had no consideration and has made no decision whatsoever as to a topical ointment involving betamethasone valerate,” Brewster said.

While one of Brewster's main points was that the KHRC rules refer to only the injectable form of betamethasone, Wolsing began her closing arguments with a statement that suggested the opposite of the point that has been belabored heavily over the past 15 months.

“There has been a lot of testimony about ointments and injections and picograms,” she said. “I am here to suggest that we need a dose of common sense. Medina Spirit tested positive for betamethasone. The regulations and the science make no distinction between how the betamethasone got in the horse. If it's positive, it's prohibited…Ultimately under KHRC regulations, like the regulations of every other racing jurisdiction, Mr. Baffert is responsible for the condition of Medina Spirit.”

Using a dry erase board to present her points, Wolsing again brought up the case of Gamine to make the comparison between the events that transpired with both the positive betamethasone test for Gamine, and subsequently, the positive test for Medina Spirit.

“You have the same drug, the same response, the same amount of medication and, Your Honor, you also have the same sort of excuse: I relied on my vet,” Wolsing said. “Similarly, you have the same culprit. [You have] the same person who is held responsible for the medication positives: Mr. Baffert.”

Wolsing went on to explain that she believed Medina Spirit's positive test was “even more egregious” because Baffert had been made aware of the limit of detection rule and the 14-day stand down period for betamethasone after Gamine's positive test for the same corticosteroid.

Now that the hearing has concluded, hearing officer Clay Patrick will examine the case. Patrick said that he had 60 days from the time of receiving the transcript to arrive at a ruling that the KHRC may or may not choose to accept. Further appeals may proceed from there.

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Route of Administration Argument Continues in Day 5 of Derby DQ Appeal

The Kentucky Horse Racing Commission's hearing to address Bob Baffert's appeal came to a crossroad early in its fifth session on Monday in Frankfort, Kentucky following a three-day break over the weekend. After the KHRC closed their case at the start of the session, the appellants began their case by calling for a partial directive verdict in their favor based on their claim that the KHRC never proved how Medina Spirit (Protonico) received the betamethasone that led to his positive test and subsequent disqualification from his 2021 GI Kentucky Derby victory.

“Although we heard the testimony of a veterinary pharmacologist and three analytical chemists, none of the KHRC experts testified that Medina Spirit received an intra-articular injection of betamethasone within 14 days of the race or ever,” said Baffert attorney Joe DeAngelis.

The route of administration that was used when Medina Spirit received the betamethasone has already been a thoroughly-debated point since Baffert first filed the appeal to clear from his record a 90-day suspension (which he has already served earlier this year) and reverse Medina Spirit's disqualification. While Baffert's team of attorneys have said there is no evidence that Medina Spirit received betamethasone via injection and that he instead received the medication topically to treat a skin lesion, the KHRC argues that the route of administration does not matter as betamethasone is a Class C, prohibited substance in any form.

The attorneys volleyed back and forth on this subject, but ultimately hearing officer Clay Patrick opted to deny the partial directive verdict motion and proceed with further witnesses.

While Baffert was present in court for the hearing last week, he was not present in the hearing room on Monday. He is set to appear back as a witness on Tuesday via Zoom, along with Medina Spirit's owner Amr Zedan.

Over a seven hour span on Monday, three scientific experts took to the stand, all virtually, to discuss the details of Medina Spirit's test result findings.

The first witness of the day was Dr. George Maylin, the director of the New York State Equine Drug Testing Lab which was responsible for the court-approved outside testing of Medina Spirit's urine sample last summer. Taking the stand virtually, Maylin's questioning was frequently interrupted due to technical difficulties, but it went on for over two hours.

Baffert attorney Craig Robertson asked Maylin about the procedure used to test Medina Spirit's sample and the results that were found. Maylin reported that the substances found included betamethasone 17-valerate, clotrimazole and a metabolite of clotrimazole. He concluded that all three were components of the topical ointment Otomax. Later asked by Robertson if the injectable form of betamethasone contains clotrimazole, Maylin replied, “Not that I'm aware of.”

Maylin was cross-examined by Jennifer Wolsing, general counsel for the KHRC. Wolsing's questioning focused in on the fact that betamethasone acetate and betamethasone phosphate, which would be found in an illegal injection of betamethasone, were not directly tested for.

“Had there been more urine and more time, more could have been done,” Maylin said. “But the judge wanted an answer in a hurry.”

When the examination was redirected to Robertson at the end of Maylin's time on the witness stand, Maylin concluded that he was confident in the test results and that he believed there was no injected betamethasone in Medina Spirit's system.

After a break for lunch, the Baffert team brought Tom Lomangino to the witness stand. Lomangino has previously served as the Director of the Maryland Racing Commission Laboratory and the Director of USEF Equine Drug Testing and Research Laboratory.

Lomangino worked under Maylin for a brief stint at Cornell University and categorized Maylin as, “Very dedicated. Consummate technician. Good person to work for.”

Brewster asked Lomangino about the Standard Operating Procedures (S.O.P.) that were used for the original testing conducted by Industrial Laboratories of Colorado. When asked if he believed that the original test followed these procedures, Lomangino said, “No. I read something that said the analyst guessed…What we're talking about here is analytical chemistry. You're going to have certified reference material of the exact compound you're trying to find and you're going to compare that to the unknown.”

Lomangino's time on the witness stand went into the details of the S.O.P. for both the initial test through Industrial Laboratories and the second test conducted by the University of California, Davis. Lomangino said he was not confident that S.O.P were followed for either test.

While Wolsing's cross-examination went into Lomangino's qualification as a lab technician and started a deep dive interpreting the graphs from Medina Spirit's UC Davis test, the examination was cut short due to a medical appointment Lomangino had to attend. He will return to the witness stand tomorrow.

The last witness of the day was Dr. Steven Barker, the former head of the laboratory that tests horse samples in Louisiana. Barker was supportive of the results Maylin discussed earlier in the day.

“Let's keep something in mind,” he said. “Dr. Maylin was asked to do the analysis from three different companies. He did not have an existing method before any of the three. He was asked to, in a very short time, develop an analysis for betamethasone valerate, clotrimazole and gentamicin. Those are not typically monitored in equine horse samples…There's nothing routine about this.”

Barker also criticized Dr. Scott Stanley, who, in his testimony last Thursday, said he did not believe that Medina Spirit got betamethasone from a topical ointment.

“Dr. Stanley made a number of egregious errors in interpreting the data and results,” Barker said.

Robertson later asked if Barker had an opinion as to whether the findings reported by the KHRC were the result of an ointment or an injection.

“The evidence clearly shows that it was as prescribed by the veterinarian,” Barker replied. “It was a topical administration of Otomax that contained the [betamethasone] valerate, clotrimazole, and the clotrimazole metabolite. Yes, this had to have been–with the levels in the urine and with the other facts–from a topical administration.”

With the possibility of the hearing meeting its end on Tuesday, the upcoming session is expected to see virtual appearances by Baffert and Zedan, along with Baffert's veterinarian Dr. Vince Baker. From there, Patrick can arrive at his ruling that the KHRC may accept or reject. Hearing officers hired by racing commissions typically take months to issue a written report and recommended findings.

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Getting Down to the Science of It All In Medina Spirit DQ Appeal

FRANKFORT, KY – After a brief private meeting between attorneys and the hearing officer to discuss “confidentiality” matters, the Kentucky Horse Racing Commission's hearing addressing trainer Bob Baffert's appeal continued, slowly but surely, on Wednesday in Frankfort, KY.

While Tuesday's session focused on the KHRC's medication rules, along with those established by the industry's Racing Medication and Testing Consortium (RMTC) and the model rules of the Association of Racing Commissioners International (ARCI), the center of interest Wednesday was the corticosteroid betamethasone itself.

The day started off with Dr. Heather Knych, a professor of clinical veterinary pharmacology and head of the pharmacology section at the K.L. Maddy Equine Analytical Pharmacology Laboratory at the School of Veterinary Medicine at the University California, Davis. She provided her testimony via Zoom (from California) as an expert witness.

Called to the stand (virtually) by KHRC general counsel Jennifer Wolsing, Knych spoke to her area of specialty in equine pharmacology, with special interests specifically in studying drug metabolism, anti-inflammatory drugs, pain management and emerging threats. Knych explained that she has studied the effects of drugs on performance horses for nearly 15 years and has had several studies focused on corticosteroids published.

Wolsing asked Knych to explain what betamethasone is, what the effects of it are, and made note of the longevity of its effects in a genomic sense. Along that line of questioning, the KHRC's Medication Classification Schedule was pulled up as an exhibit, as Knych was asked if she agreed with betamethasone being listed as a Class C medication.

“I agree with its classification as a Class C medication. Based on the description, it's an FDA approved drug, it's a therapeutic agent and it has moderate potential to affect performance. [It] could potentially mask a lameness or injury and fits nicely with the other medications in this category,” said Knych, who also serves on the RMTC's Scientific Advisory Committee.

When asked if the administration of the drug matters in terms of measuring its impact, she replied, “I don't think it matters. The drug is the drug. Once it gets in the system, that's what we're looking at, [what it does] once it gets in the body and its effect.”

Diving deeper into the specifics of betamethasone and corticosteroids in general, Knych discussed the effects of various cortisol levels, how that is measured, and the overall picture when it comes to how the concentration of a drug in the horse's system correlates directly with the effects of the drug. Wolsing presented various published studies on the topics at hand during this time, including some that Knych was involved with herself. Some of the studies focused on betamethasone, while others centered around the effects of dexamethasone, a comparable drug that is also listed as a Class C medication.

When asked if the health and safety of the horse is part of the focus in equine pharmacology work, Knych said, “The primary reason corticosteroids are so tightly regulated is to eliminate the potential to affect performance, the potential to mask [things such as] lameness.”

Knych also acknowledged that there is potential of masking underlying health issues when using higher amounts of betamethasone.

However, when it came to the findings from the studies presented, Knych did say, “We don't know the end pharmacological effect of betamethasone in the horse.” She also said there have been no studies done specifically on the effects of betamethasone in horses when administered as a topical ointment.

During this time, Wolsing cited the KHRC's case with trainer Graham Motion in 2015, involving a stewards' ruling after a horse he trained that raced was found with too much methocarbamol in its system, to show that the commission has a right to regulate in situations where there is gray scientific area with regard to medication. Craig Robertson, an attorney for Baffert, argued against its relevance when discussing the systemic effects of corticosteroids.

Motion claimed he followed the RMTC guidelines for withdrawal but was still flagged, which is a similar claim from Baffert in terms of what happened with Medina Spirit's post-race result that revealed a betamethasone overage, which ultimately resulted in the colt's disqualification from his victory in the 2021 GI Kentucky Derby.

Robertson, who was part of the KHRC case involving Motion in 2015, believed the case was being mischaracterized and stated, “The case says that you have to have a rational scientific basis for what you do.”

Wolsing also asked Knych if the route of administration of the drug has any bearing on the effect of the drug once it is in the horse's system. She replied, “No. It depends on what the concentration of the drug is regardless. I'm talking about the concentrations at the end, when we still see suppression of cortisol.”

In one of her final inquiries, Wolsing stated, “Medina Spirit was administered approximately 45 milligrams of Otomax from a bottle over a period of about Apr. 9 and going through Apr. 30, the day before the [2021] Derby.” She followed up asking Knych what the impact of that would be on the horse.

“I don't think we can say one way or another. We don't have the science to say one way or another,” she replied.

Her response was met with audible satisfaction from Baffert's legal team, who took over from there, as they continued to argue that the KHRC's medication rules lack detail and scientific backing, specifically when it comes to administering betamethasone in the form of a topical ointment.

The cross-examination of Knych, conducted by Baffert's attorney Joe DeAngelis, delved into the inexactness of the science in the studies of and testing for betamethasone, along with how long it takes for betamethasone to leave a horse's system–intended to enforce that the 14-day withdrawal period established by the KHRC was unreliable.

The RMTC's Controlled Therapeutic Substances Monograph Series was also brought up, as DeAngelis asked if Knych recalled discussing or hearing any discussion about the ethics and safety of topical use of betamethasone. She said she hadn't. When asked if there had been any recommendation from the RMTC specifically on a stand-down period for topical use of corticosteroids, Knych replied, “No.”

DeAngelis also referenced RMTC's Position Statement on Corticosteroids, a study published in 2013, which showed that the use of topical corticosteroids was known to RMTC at the time the findings were published.

When asked if she approved of the 14-day stand-down period, Knych replied, “Yes,” and admitted she did not recall any discussion of recommending it to be longer.

Knych's time as a witness, which lasted nearly 3 1/2 hours, ended with some final questions from Wolsing and a few remaining questions for the sake of clarification from DeAngelis.

Wolsing asked, “Could a much higher concentration affect a horse's health and safety?”

“Potentially yes, but what those levels are, I don't think we necessarily know that yet,” said Knych.

After a 45-minute lunch break, members of the media were asked to leave the conference room as lawyers met behind closed doors to discuss what hearing officer Clay Patrick, a Frankfort attorney, called “proprietary information.”

The hearing addressing Baffert's appeal to get his already served 90-day suspension and a $7,500 fine removed from his record, along with reinstating Medina Spirit's victory in last year's Kentucky Derby, continues Thursday at 9 a.m. and is expected to roll over into next week, starting Monday, Aug. 29.

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