craig robertson | Horse Racing Free Tips

Baffert Legal Team May File Contempt Motion Against NYRA

A lawyer representing trainer Bob Baffert has notified the judge handling Baffert's legal dispute with the New York Racing Association that he intends to file a motion to hold NYRA in contempt and will also seek a stay that would prevent NYRA from taking any immediate action that could lead to Baffert being suspended.

Those intentions were part of a letter sent Tuesday by Baffert attorney Craig Robertson to Judge Carol Bagley Amon, Senior United States District Judge of the United States District Court for the Eastern District of New York. Robertson asked for a pre-motion conference to go over what are the latest developments in the Baffert-NYRA case.

After it was revealed that the Baffert-trained Medina Sprit (Protonico) tested positive for the substance betamethasone following the GI Kentucky Derby, NYRA announced on May 17 plans to temporarily suspend the Hall of Fame trainer. Baffert fought back and was granted a preliminary injunction by Amon, who ruled that Baffert's right to due process had been violated because NYRA took the action without giving him a hearing. That allowed Baffert to enter horses at Saratoga, but did not end his legal ordeal with NYRA.

On Sept. 10, NYRA announced that it had scheduled a hearing for Baffert, who, NYRA contended, has engaged in conduct detrimental to the best interest of the sport. The hearing is now scheduled to begin Oct. 11 and O. Peter Sherwood, a retired New York State Supreme Court Justice, is scheduled to serve as the hearing officer.

Robertson's argument revolves around the July 14 decision from Amon, which he writes, meant that NYRA cannot go forward until the case before Amon is fully adjudicated.

“On July 14, 2021, this Court entered an Order enjoining NYRA from enforcing its suspension,” Robertson wrote. “The Court directed that NYRA was enjoined 'pending the final hearing and determination of this action.' NYRA did not appeal the Court's ruling.”

Robertson wrote that the scheduling of a hearing was in “direct contravention” of Amon's July 4 ruling.
“…on Sept. 10, 2021, NYRA sent Baffert another letter stating that it was instituting renewed proceedings to impose the exact same suspension which was enjoined,” Robertson wrote. “The reasons set forth in NYRA's Sept. 10 letter for why it wants to suspend Baffert are the exact same ones set forth in its May 17 letter. The only thing different is that it appears that NYRA has concocted some procedures–apparently just for this case–in an attempt to retroactively install legitimacy to its blatantly unlawful actions. These 'procedures' did not exist until NYRA created them out of whole cloth two months after the Court refused to allow it to arbitrarily suspend Baffert…”

NYRA spokesperson Pat McKenna maintained that all actions taken by NYRA have been in compliance of Amon's July 14 ruling.

“NYRA is not seeking to 'enforce' the May 17, 2021 letter temporarily suspending (Baffert),” he said. “That letter is no longer in effect and NYRA does not now or in the future intend to enforce or otherwise invoke that letter as the basis for any action taken against Mr. Baffert. The current NYRA hearing proceeding was independently commenced pursuant to NYRA's common law and regulatory authority to exclude licensees, subject to the requirements of due process, and in full compliance with the U.S. District Court's order and memorandum, dated July 14, 2021, in Bob Baffert v. The New York Racing Association, Inc.”

Robertson cites NYRA's recent actions as the reason why it should be held in contempt. He wrote that the Sept. 10 letter sent to Baffert notifying him that a hearing had been scheduled was “clear and convincing evidence of noncompliance with the Court's Order.”

“In reality, the only difference between the original suspension letter (which has now been enjoined) and NYRA's latest suspension letter is the date on the letterhead,” Robertson wrote. “Until this litigation is concluded, NYRA cannot move forward with attempting to enforce a suspension against Baffert that is identical to the one which has been enjoined. NYRA should be found in contempt of this Court's injunction Order and NYRA's renewed effort to suspend Baffert should be stayed.”

After getting the stay, Baffert had six starts at Saratoga with one win. The victory came with Gamine (Into Mischief) in the GI Ballerina S. That Baffert competed in Saratoga without incident is, Robertson wrote, still another reason why NYRA should not be looking to suspend him at this time.

“There is nothing new which has transpired since NYRA was enjoined,” he wrote. “No new facts, no new allegations. If anything, the facts have moved more solidly in Baffert's favor and toward maintaining the status quo as Baffert raced several horses at the recent Saratoga meet without incident.”

According to the letter, Baffert has a final draft of his motion filed and will submit it if NYRA continues to move forward with efforts to suspend the trainer.

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Kentucky Judge Anxious To Remand Medina Spirit Case To Board Of Stewards

Monday morning in Franklin County Circuit Court saw attorneys for embattled trainer Bob Baffert and the Kentucky Horse Racing Commission back in front of Judge Thomas Wingate, in response to the KHRC's July 20 request that the judge compel Baffert's attorneys to reveal the results of additional testing on Medina Spirit's post-race urine sample.

The case is based on the finding of betamethasone in a post-race sample of Medina Spirit, collected immediately after the colt crossed the wire first in the Kentucky Derby.

“My understanding is that an affirmative defense is being mounted by the plaintiffs, to the extent that there may be some evidence as to how this substance (betamethasone) was introduced to the horse,” said Jennifer Wolsing, general counsel for the KHRC. “If this turns out to be a viable affirmative defense, and of course right now the Kentucky Horse Racing Commission takes no position one way or another on that issue, that if it is, then the racing commission may want to do additional testing.

“Regrettably, we're still waiting on the testing results. We can't have a stewards hearing until those testing results have come back, because that appears to form the basis of the defense the plaintiffs want to mount. We would really like those results so that we can press forward with a stewards hearing and find out more about this case.”

Counsel for Medina Spirit's trainer Bob Baffert and owner Zedan Stables, Craig Robertson, filed a civil suit against the Kentucky Horse Racing Commission on June 7 demanding their right to test the split urine sample, which sat undisturbed in the commission's freezer. Remnants of the original biologic samples were initially sent to be tested for those ingredients, but they were reportedly damaged before arrival at the plaintiffs' choice of labs, the New York Equine Drug Testing and Research Laboratory.

Judge Wingate ordered June 16 that the remaining urine sample be flown to the New York lab, that two KHRC representatives travel with the sample, and that plaintiffs fund the flight. Upon arrival, the KHRC was to retain 5 milliliters of the sample, while the remainder was to be tested for clotrimazole, gentamicin, and betamethasone valerate.

On July 14, the sample was flown to New York accompanied by Dr. Clara Fenger and Tom Huckeby, representing Baffert and Medina Spirit's owner, Amr Zedan, as well as by KHRC executive director Marc Guilfoil and equine medical director Dr. Bruce Howard.

A July 19 filing by the KHRC alleges that the urine sample was split into four milliliter and 19 milliliter segments, with the New York lab to retain the larger segment for testing. Program director Dr. George Maylin attempted to then retain the remnants of the original urine sample, which was purportedly contaminated during shipment. Maylin claimed he was unaware that the court order required those remnants be turned over to the KHRC.

When the remnants of the original sample were turned over to KHRC representatives, the filing alleges that the urine tube contained only one to two milliliters of “bloody fluid,” a broken serum separator tube, and another tube with serum that had been saved — all presented at room temperature instead of frozen. Guilfoil and Howard report that Maylin said most of the sample had been used up in testing, but would not indicate what testing was performed.

On Monday, after initial confusion over which urine sample the KHRC's motion was referring to, Wolsing represented that the commission was concerned about why the original sample had been tested when it had clearly been contaminated.

“As far as what we're asking for, we did want transparency in these test results, and we'd also like to know why the court order was violated, despite Dr. Maylin's statement to the contrary,” Wolsing said.

“Mr. Robertson says that they (KHRC representatives) took the primary sample back (to Kentucky) with them,” said Judge Wingate.

“We took back what hadn't been tested up by the New York laboratory,” Wolsing clarified. “That was a shock to us. I mean, if this primary sample is so compromised, then what in the world are they testing for?”

Robertson took over the microphone to explain.

“The primary (sample) arrived in New York in a compromised condition,” Robertson said. “New York was under instruction to test that sample, and it arrives in a compromised condition. The Kentucky Horse Racing Commission doesn't advise us that it arrives in a compromised condition until five days later. We immediately then begin the process of, 'Well, let's get the pristine split sample to New York for testing.' That took three weeks because they fought us on that. It took three weeks before there was an order entered that said, 'Test the pristine split sample.'

“During that three weeks, of course the New York laboratory has the primary sample under instructions to test it. Now I don't know what testing they did or didn't do, because I have intentionally not had any communication with them about that. But it certainly is plausible that during those three weeks, they performed some sort of testing on the compromised sample, because they were under instructions to do it, and they had no idea that they would subsequently get an additional sample. Regardless of whatever they've done on the primary sample, and the subsequent split sample, all of those results need to be disclosed to both parties at the same time.”

Following that explanation, Judge Wingate quipped: “The main thing is we need to get those results so I can remand this to the Kentucky Horse Racing Commission, and you all can fight like cats and dogs down there over whether he's the Derby horse, and what needs to happen to Mr. Baffert.”

Judge Wingate did not issue an official order, but said he would do so if the lab was unwilling to provide the test results or a date on which they would be delivered to both parties.

“You're in the driver's seat (referring to KHRC counsel), because you've already got a report that says the steroid was in the horse, and you all just need to go and do your stewards hearings is what I believe, and go from there and see what kind of penalties that the Horse Racing Commission levies on this horse and trainer,” Judge Wingate said.

And so we wait.

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KHRC Alleges ‘Lack Of Candor And Contemptuous Conduct’ By New York Lab, Baffert Attorneys

The Kentucky Horse Racing Commission filed a status report and motion for order on Monday in the Medina Spirit case, reports the Courier-Journal, requesting that Franklin Circuit Judge Thomas Wingate compel trainer Bob Baffert's attorneys to disclose results of testing on a urine sample the court had ordered sent to the New York Equine Drug Testing and Research Laboratory. The KHRC is alleging “lack of candor and contemptuous conduct by the New York Laboratory, plaintiffs, or both.”

Judge Wingate issued a written decision on June 16 regarding plans for the remaining urine sample of Kentucky Derby first place finisher Medina Spirit. The decision follows a June 11 hearing in Franklin County Circuit Court, in which Judge Wingate determined that the legal team for Medina Spirit's connections will be permitted to do extra testing on a urine sample (the “split sample”) taken from the colt after the Kentucky Derby and held by the KHRC.

The case is based on the finding of betamethasone in a post-race sample of Medina Spirit, collected immediately after the colt crossed the wire first in the Kentucky Derby.

Counsel for Medina Spirit's trainer Bob Baffert and owner Zedan Stables filed a civil suit against the Kentucky Horse Racing Commission on June 7 demanding their right to test the split urine sample, which sat undisturbed in the commission's freezer. Remnants of the original biologic samples were initially sent to be tested for those ingredients, but they were reportedly damaged before arrival at the plaintiffs' choice of labs.

Judge Wingate ordered June 16 that the remaining urine sample be flown to the plaintiffs' choice of lab for testing, the New York Equine Drug Testing and Research Laboratory, that two KHRC representatives travel with the sample, and that plaintiffs fund the flight. Upon arrival, the KHRC was to retain 5 milliliters of the sample, while the remainder was to be tested for clotrimazole, gentamicin, and betamethasone valerate.

On July 14, the sample was flown to New York accompanied by Dr. Clara Fenger and Tom Huckabee, representing Baffert and Medina Spirit's owner, Amr Zedan, as well as by KHRC executive director Marc Guilfoil and equine medical director Dr. Bruce Howard.

The July 19 filing by the KHRC alleges that the urine sample was split into four milliliter and 19 milliliter segments, with the New York lab to retain the larger segment for testing. Program director Dr. George Maylin attempted to then retain the remnants of the original urine sample, which was contaminated during shipment, claiming he was unaware that the court order required those remnants be turned over to the KHRC.

When the remnants were turned over to KHRC representatives, the filing alleges that the urine tube contained only one to two milliliters of “bloody fluid,” a broken serum separator tube, and another tube with serum that had been saved — all presented at room temperature instead of frozen. Guifoil and Howard report that Dr. Maylin said most of the sample had been used up in testing, but would not indicate what testing was performed.

“We will be formally responding to the Court,” Baffert's attorney, Craig Robertson, told the Courier-Journal. “The statements contained in the KHRC's status report are inaccurate. We have intentionally had no direct communication with the New York lab, so we are unaware of any testing or the results. This will be detailed in our response.”

Judge Delays Ruling in Baffert-NYRA Case

BROOKLYN–After an-hour-and-forty minute hearing Monday in the United States District Court for the Eastern District of New York, in which lawyers representing Bob Baffert argued for a preliminary injunction that would allow the trainer to once again race at the New York Racing Association tracks, Judge Carol Bagley Amon did not render a decision and did not give a time frame for doing so.

The hearing came on the heels of a May 17 announcement from NYRA in which the racing organization said Baffert had been temporarily suspended, which meant he could not stable at the New York tracks or race there. The decision came shortly after Baffert announced that the Kentucky Horse Racing Commission had informed him that Medina Spirit (Protonico) had tested positive for Betamethasone following his win in the GI Kentucky Derby. Baffert's legal team has argued that the NYRA ban is causing him irreparable harm for a number of reasons, among them the fact that he currently cannot race at Saratoga, one of the premier meets in the sport. Saratoga opens Thursday, July 15.

While much of the discussion among the lawyers and the judge rehashed details already made public, there was at least one new development. To date, NYRA has not given Baffert a hearing. Its lawyer, Henry Greenberg, revealed that after an Aug. 11 board meeting, NYRA will announce the length and terms of Baffert's suspension. Baffert will not be allowed to testify at the board meeting, but will be given the opportunity to be heard if he decides to appeal should NYRA go forward with its suspension.

Baffert's lawyer, Craig Robertson said his client is hoping to run at least three horses in Saratoga, Gamine (Into Mischief) in the GI Ketel One Ballerina Aug. 28, Illumination (Medaglia d'Oro) in the GI Longines Test S. August 7 and Fenway (Into Mischief) in an unspecified race. He has also seen a handful of owners, among them WinStar Farm, take horses eligible for major races in Saratoga away from him.

Flanked by three lawyers, Baffert appeared in court, but was not called on to testify.

Among the Baffert team, Robertson was clearly in charge and pounded away at what have become common themes from the trainer's defense. Robertson argued that, by issuing a suspension without affording Baffert a hearing, NYRA had deprived him of his due process rights. He also alleged that, in the case of Baffert, NYRA does not have the legal right to exclude the trainer.

“NYRA jumped the gun and decided to be judge, jury and executioner and suspend him,” Robertson said. “It was a case of fire, ready, aim. They acted outside of their authority and they violated his constitutional right to due process. He has a trainer's license issued by the New York Gaming Commission and that is a constitutionally protected property interest which cannot be taken away without due process. And there has been zero due process.”

While Judge Amon was careful not to tip her hand, she did pepper Greenberg with questions about NYRA's failure to give Baffert a hearing. Greenberg said one of the reasons NYRA did not do so was because Baffert never asked for one.

“He has to ask for one?” she asked incredulously.

Noting the importance of the Saratoga meet and the number of important stakes races run there, Robertson said that Baffert would be subject to irreparable harm if not allowed to race there.

“The opportunity to participate [at Saratoga] is vitally important. “Saratoga is the premier race meet in the country. Saratoga is the crown jewel, and has 43 graded stakes races. These races come around only once a year and if he is denied the opportunity to participate in them, he cannot get back that opportunity. That is irreparable harm.”

Greenberg zeroed in on integrity issues and a need for NYRA to suspend someone who had not only the Derby positive but four others within the course of a year. He said Baffert has smeared some of the biggest events in the sport, mentioning not only Medina Spirit in the Derby, but another Betamethasone positive, with Gamine in the GI Kentucky Oaks.

“There's never been anyone else who has managed to smear the Kentucky Derby and the Kentucky Oaks and has had five violations within the span of a year,” Greenberg said. “That's what NYRA was presented with…He continues to race and all the while, the reputation of the sport suffers.”

Greenberg also attacked the way Baffert handled the dispute in its earliest days, which included an impromptu press conference at Churchill Downs and several media appearances in which he first maintained that Medina Spirit was never given Betamethasone. He later reversed course and said it likely got into the horse's system because it was an ingredient in an ointment used to deal with a skin problem.

“He never accepted responsibility or said he was sorry,” Greenberg said. “In a 14-minute interview, he attacked regulators, their integrity and their credibility and he said the horse was never given Betamesthasone.”

Greenberg also attacked Baffert's clumsy assertion that the Medina Spirit positive and the ensuing uproar was a matter of “cancel culture.”

Baffert, Robertson and Greenberg all declined to comment afterward. So did NYRA President and CEO Dave O'Rourke, who was in attendance along with a cadre of NYRA officials.

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